Silvey v. the State , 335 Ga. App. 383 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 20, 2015
In the Court of Appeals of Georgia
A15A1139. SILVEY v. THE STATE.
MCMILLIAN, Judge.
After a Morgan County jury convicted Christopher Gerald Silvey on two
counts of burglary,1 the trial court denied his motion for new trial. Silvey now appeals
the denial of that motion, asserting that the trial court erred in admitting improper
evidence of other acts2 and improper bolstering evidence. He also contends that he
received ineffective assistance of counsel both during the plea process and at trial.
1
Each burglary count was charged under a separate indictment, but the two
counts were joined for trial.
2
We use the term “other acts” as defined and adopted by the Supreme Court
to refer to evidence admitted pursuant to OCGA § 24-4-404 (b). State v. Jones, 297
Ga. 156, 158 (1), n.1 (773 SE2d 170) (2015).
Viewed in the light most favorable to support the verdict,3 the evidence at trial
showed that Silvey participated in two burglaries in Morgan County in October 2011.
On October 11, 2011, when Kevin Meeler went to the Morgan County home of his
friend, Holly Shaifer, he noticed an unfamiliar car in the driveway, a maroon Toyota
Camry, with a man sitting in the passenger seat. Meeler knocked on the door of the
house and rang the doorbell, but no one answered. Then as he began to back his car
out of the driveway, he saw a man with “blondish colored hair” he did not recognize
walking from behind the Shaifers’ garage. Meeler pulled back into the driveway and
asked the man what he was doing. The man first told him that his car was running hot
and that he and the other man were looking for water. He then told Meeler that when
they stopped the car, their dog, a black and white terrier, jumped out of the car
window, and they were looking for it. Meeler wrote down the car’s license tag
number, told the men to leave, and then notified the police and the Shaifers.
An officer from the Madison Police Department responded to the call after the
maroon car had already left. He checked the exterior of the house for signs of a break-
in but found nothing out of place. Holly Shaifer arrived home later, but she did not
notice anything missing inside her house. However, she did not check a jewelry box
3
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
that she kept in the bathroom, which held her “nice . . . more sentimental” jewelry.
Approximately one month later, at the request of police, Shaifer did a more thorough
check and noticed that jewelry she kept in that box was missing.
The license plate number that Meeler wrote down was later traced back to
Silvey’s mother. At trial, Silvey’s co-defendant Jamie Lyn Webb testified that he was
the man sitting in the passenger seat of that car when Meeler arrived, and Silvey was
the man who emerged from behind the garage to speak with Meeler. Webb said that
Silvey had entered the Shaifers’ house while he sat outside, and when Silvey got back
in the car, he pulled a bundle of gold jewelry out of his pocket. The men sold some
of the jewelry for cash the same day.
Nine days after the incident at the Schaifers’ house, Lori Ghann went home
during her lunch break. When she arrived, she saw a “reddish burgundy” car, with the
hood up, parked in her carport next to her water spigot. A dark-haired man of average
height was looking under the hood, and as she pulled in the driveway, he approached
the car to tell her that he had stopped to get some water because his car had been
running hot. Ghann then noticed a man inside her house through the kitchen window.
As she began backing out of her driveway, the first man said their dog had jumped
out of the car window and the other man was looking for it. As Ghann called 911, she
3
saw the other man come around the front of her house; Ghann described him as
blonde and a little older and taller than the first man. As she was talking on the phone,
the men pulled up beside her. The blonde man told her that they did not mean to scare
her, but Ghann told him that she had seen him inside her house. The man denied it
and then drove off.4
Webb testified at trial that Silvey and he were the men at Ghann’s home that
day, and Silvey was driving the same Toyota Camry he drove to the Shaifers’ house.
Webb was the man outside under the hood of the car of the car when Ghann drove up,
and Silvey was inside the house. He said that Silvey had only been in the house a
couple of minutes when Ghann arrived.
Webb further testified that Silvey and he committed burglaries to get money
to buy drugs. These burglaries began after he asked Silvey where he got his money,
and Silvey replied that he had been committing burglaries to raise cash. Webb joined
him for the first time on the Shaifer burglary. He said that Silvey usually drove the
maroon Toyota Camry, picked out the locations for the burglaries, and broke into the
4
The Shaifer and Ghann burglaries will be referred to collectively herein as the
“Morgan County burglaries.”
4
houses using a plastic grocery store card to manipulate the locks, while Webb waited
outside. After the burglaries, they sold the valuables they stole for cash.
When questioned by police near the time of the Shaifer burglary, Meeler was
unable to pick Silvey from a photographic lineup, and neither Ghann nor Meeler
could identify him at trial. To establish identity, the State presented photographs and
testimony reflecting that near the time of the Morgan County burglaries, Silvey had
longer, lighter hair than he did at trial. Webb testified, for example, that Silvey was
eight or nine years older than him and, at the time of the trial, was heavier, more clean
shaven, and had shorter hair than at the time of the Morgan County burglaries.
Another witness testified that at the time of their arrests, Silvey had “dirty blonde”
hair and was two inches taller than Webb.
Additionally, the State presented evidence of Silvey’s arrest in connection with
a third burglary, which took place in Greene County. Webb was arrested first in
connection with two unrelated Greene County burglaries. Afterwards, he cooperated
with the Greene County Sheriff’s Office by showing investigators the residences he
had burglarized alone, residences he had burglarized with Silvey, and residences he
said Silvey had identified as places he had burglarized alone in Morgan, Greene, and
Putnam Counties. During the investigation into these burglaries, an investigator
5
discovered that Silvey had pawned a Greene County High School class ring
belonging to Tyrone Janes (the “Class Ring”),5 who lived at one of the Greene County
burglary sites that Webb claimed Silvey had admitted burglarizing alone (the “Janes
burglary”). The State further introduced a copy of the pawn ticket for the ring, which
contained Silvey’s name and identifying information (the “Pawn Ticket”).
The State also played a video of Silvey’s interview with police. During that
interview, Silvey denied any involvement in the Morgan County burglaries but
admitted that he had been in Morgan County on two occasions looking for his dog,
a black and white terrier. He said it was possible, therefore, that someone might be
able to pick his picture out of a lineup in connection with that circumstance. After
Silvey was convicted of the two Morgan County burglaries and his motion for new
trial was denied, this appeal followed.
1. Silvey asserts that the trial court erred in allowing evidence of the Janes
burglary under OCGA § 24-4-404 (b) of Georgia’s new Evidence Code.6 Under the
5
Janes was unaware that his ring was missing until he was contacted by police.
He subsequently discovered that not only was his class ring gone, but a gold nugget
ring and a silver necklace were also missing.
6
Because Silvey was tried in April 2013, Georgia’s new Evidence Code applies
in this case. See Ga. L. 2011, p. 99, § 101 (new Code applies “to any motion made or
hearing or trial commenced on or after” January 1, 2013).
6
new Code, “[a] trial court’s decision to admit other acts evidence will be overturned
only where there is a clear abuse of discretion.” State v. Jones, 297 Ga. 156, 159 (1)
(773 SE2d 170) (2015).
In determining the admissibility of other acts evidence, our Supreme Court has
adopted the test set out by the Eleventh Circuit Court of Appeals.7
Under this test, in order to be admissible, the State must make a showing
that: (1) evidence of extrinsic, or other, acts is relevant to an issue other
than a defendant’s character, see Rule 404 (b); (2) the probative value
of the other acts evidence is not substantially outweighed by its unfair
prejudice, i.e., the evidence must satisfy the requirements of Rule 403;
and (3) there is sufficient proof so that the jury could find that the
defendant committed the act in question. In no case may evidence of
other acts be admitted for the sole purpose of proving the character of
the accused to show that he acted in conformity therewith. See OCGA
§ 24-4-404 (b).
(Citations omitted.) Jones, 297 Ga. at 158-59 (1). See also Bradshaw v. State, 296 Ga.
650, 656 (3) (769 SE2d 892) (2015).
7
When Georgia courts consider the meaning of the new Code provisions
closely modeled after the federal rules, such as OCGA § 24-4-404 (b), they look to
decisions of the federal appeals courts construing and applying the applicable Federal
Rules, especially the decisions of the Eleventh Circuit. See Parker v. State, 296 Ga.
586, 592 (3) (a) (769 SE2d 329) (2015).
7
(a) Applying the test in this case, we note that the trial court admitted the
evidence of the Janes burglary to show intent and identity. Under the first prong of
the test, our Supreme Court has adopted the following federal analysis for the issue
of intent:
[A] defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent,
which it may prove by qualifying Rule 404 (b) evidence absent
affirmative steps by the defendant to remove intent as an issue. Where
the extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendant’s state of mind in perpetrating
both the extrinsic and charged offenses. Thus, where the state of mind
required for the charged and extrinsic offenses is the same, the first
prong of the Rule 404 (b) test is satisfied.
(Citation and punctuation omitted.) Bradshaw, 296 Ga. at 656-57 (3).
Silvey pled not guilty to the charges in this case, thus making intent a material
issue, and he failed to take affirmative steps to remove it from the case. See United
States v. Williford, 764 F2d 1493, 1498 (11th Cir. 1985) (discussing the use of a
stipulation to remove issue of intent from case). Although Silvey argues that his
defense denying that he was involved in the burglaries removed the element of intent
from the case, the Eleventh Circuit has consistently rejected such an argument. See,
8
e.g., United States v. Cardenas, 895 F2d 1338, 1342 (II) (A) (11th Cir. 1990) (where
“there is no indication in the record that defendant would have conceded his intent
to participate in the [crime] if the government proved that he was involved,” issue of
intent remains in case); United States v. Nahoom, 791 F2d 841, 845 (II) (11th Cir.
1986) (rejecting argument that denial of involvement in crime removes issue of intent
from the case); United States v. Russo, 717 F2d 545, 552 (C) (11th Cir. 1983) (per
curiam) (“mere denial of participation in [an offense] is insufficient to remove the
issue of intent from the case”); United States v. Holman, 680 F2d 1340, 1349 (II) (B)
(11th Cir. 1982) (unequivocal denials of participation in the crime along with
representations that defendant would not actively dispute the existence of intent were
insufficient to remove the issue of intent from the case). Thus, intent remained a
material issue at trial.
Because Silvey’s actions in committing the Janes burglary and pawning the
Class Ring involved the same mental state as burglarizing a house to obtain gold
jewelry to sell for cash, the evidence from the Janes burglary was relevant to establish
intent.8 See Bradshaw, 296 Ga. at 657 (3).
8
As we have found that the evidence was relevant to establish intent, we need
not analyze whether the evidence was also admissible on the issue of identity. See
Bradshaw, 296 Ga. at 656-57 (3) (analyzing only issues of intent and motive where
9
(b) In addressing the second prong of the test, we apply the balancing test
under OCGA § 24-4-403, which provides that “[r]elevant evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” The Eleventh Circuit
previously has determined that “Rule 403 is an extraordinary remedy which should
be used only sparingly since it permits the trial court to exclude concededly probative
evidence.” (Citation and punctuation omitted.) United States v. Merrill, 513 F3d
1293, 1301 (II) (11th Cir. 2008). See also Ronald L. Carlson & Michael Scott
Carlson, Carlson on Evidence 120-21 (3d ed. 2015) (“Rule 404 (b) is one of inclusion
which allows extrinsic evidence unless it tends to prove only criminal propensity.”).
Here, we find no clear abuse of the trial court’s discretion in determining that the
evidence was more probative as to Silvey’s intent than prejudicial.
(c) Under the third prong of the test, “there must be sufficient proof to enable
a jury to find by a preponderance of the evidence that the defendant committed the
[other] act(s) in question.” United States v. Edouard, 485 F3d 1324, 1344 (II) (C)
Rule 404 (b) evidence admitted to show intent, motive, and identity); Logan-
Goodlaw v. State, 331 Ga. App. 671, 675 (2), n.2 (770 SE2d 899) (2015) (physical
precedent only).
10
(11th Cir. 2007). See also Bradshaw, 296 Ga. at 258 (3). Here, the Greene County
investigator testified that Webb told him that Silvey had admitted burglarizing a home
on the street where Janes lived. Moreover, the Pawn Ticket containing Silvey’s
information and the owner’s testimony that he checked the state-issued ID of the
individual who pawned the Class Ring provided sufficient proof for the jury to find
by a preponderance of the evidence that Silvey was the individual involved.
Accordingly, we find no clear abuse of discretion in the trial court’s admission
of the evidence from the Janes burglary.
2. Silvey also contends that the trial court erred in allowing the Greene County
investigator to testify to prior statements made by Webb and Ghann, which Silvey
argues improperly bolstered the credibility of those witnesses.
Under OCGA § 24-8-801 (d) (1) (A), a prior out-of-court statement by a
witness “shall not be hearsay if the declarant testifies at the trial or hearing, is subject
to cross-examination concerning the statement, and the statement is admissible as a
prior inconsistent statement or a prior consistent statement under [OCGA §] 24-6-613
or is otherwise admissible under this chapter.” And under OCGA § 24-6-613 (c),
[a] prior consistent statement shall be admissible to rehabilitate a
witness if the prior consistent statement logically rebuts an attack made
11
on the witness’s credibility. A general attack on a witness’s credibility
with evidence offered under [OCGA §] 24-6-608 or 24-6-609 shall not
permit rehabilitation under this subsection. If a prior consistent
statement is offered to rebut an express or implied charge against the
witness of recent fabrication or improper influence or motive, the prior
consistent statement shall have been made before the alleged recent
fabrication or improper influence or motive arose.
Although OCGA § 24-6-613 (a) and (b) generally follow the comparable federal
rule,9 subsection (c) represents a codification of existing Georgia law on prior
consistent statements, as set out in cases such as Woodard v. State, 269 Ga. 317, 320
(496 SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183(728 SE2d 569) (2012). See also Cowart v. State, 294 Ga. 333, 339-40 (4) (a), n.10
(751 SE2d 399) (2013); Carlson, supra at 333.
Our Supreme Court has explained that “[a] witness’s veracity is placed in issue
so as to permit the introduction of a prior consistent statement only if affirmative
charges of recent fabrication, improper influence, or improper motive are raised
during cross-examination.” (Citation omitted.) Cowart, 294 Ga. at 339-40 (4) (a).
Where such an attack occurs, “evidence is admissible that [the witness] told the same
9
See Fed. R. Evid. 613 (a) and (b).
12
story before the motive or influence came into existence or before the time of the
alleged recent fabrication. In those circumstances, the prior consistent statement is
defined as not hearsay and thus is admitted into evidence.” (Citation and punctuation
omitted; emphasis in original.) Id. In the absence of such an affirmative attack, any
prior statement by that witness “is pure hearsay evidence, which cannot be admitted
merely to corroborate the witness, or to bolster the witness’s credibility in the eyes
of the jury.” (Citation omitted.) Id. at 340 (4) (a). Moreover, if the prior statement is
made after the motive or influence came into existence, “proof of the statement does
not assist the jury to evaluate the witness’s testimony because the reliability of the
statement is subject to the same doubt as the trial testimony.” (Citation and
punctuation omitted.) Id.(a) Webb’s prior statement – Silvey asserts that the trial court erred in
admitting the following testimony by the investigator:
When we were doing the ride-along, [Webb] had pointed out . . . there
[were] burglaries that [Webb] did on his own that he admitted to and
then there were burglaries that he stated that he and Mr. Silvey did
together and then he stated that Mr. Silvey had done some burglaries on
his own and had told him about them.
13
Silvey’s counsel objected on the ground that this testimony was hearsay, bolstering,
and character evidence, which the trial court overruled. We review that ruling for an
abuse of discretion. Kidd v. State, 292 Ga. 259, 261 (2) (736 SE2d 377) (2013).
On appeal, Silvey does not dispute that his attorney questioned Webb’s
credibility and raised issues of improper motive during its cross-examination of
Webb, and the record demonstrates that Silvey’s attorney, in fact, led off his cross-
examination of Webb by questioning his motives for testifying and attacked his
credibility throughout. Specifically, Silvey’s attorney elicited testimony that Webb
had rejected a plea deal with the hope that the State would offer a better one if he
cooperated and testified at Silvey’s trial. Silvey, on the other hand, argues that
Webb’s statement did not predate his improper motive of wanting to lessen his own
culpability, which Silvey asserts arose when Webb’s house was searched and he was
arrested for burglary. We disagree.
The statements at issue occurred during Webb’s ride-alongs with police, two
of which took place within two days of his arrest and a third around two weeks later.
Thus, he made these statements to police investigators during the course of their
investigations into the burglaries. And at no point in the cross-examination did
Silvey’s attorney imply that Webb had a motive to fabricate at the time of the ride-
14
alongs, nor did he make that argument at the time he objected to the investigator’s
testimony. Moreover, the record is devoid of evidence indicating that Webb had been
engaged in plea negotiations with the State at the time of the ride-alongs. Under these
circumstances, we cannot say that the trial court abused its discretion in admitting the
evidence of Webb’s prior consistent statement. See Moon v. State, 288 Ga. 508, 511
(4) (705 SE2d 649) (2011) (questioning witness about receiving a better plea deal by
cooperating and testifying is a “classic example of an implication of improper motive
for testifying”). Compare Cowart, 294 Ga. at 341 (4) (a) (witness’s recorded and
transcribed proffer statement during plea negotiations did not pre-date his motive to
achieve a favorable plea deal, even though no specific deal had been reached);
Duggan v. State, 285 Ga. 363, 366 (677 SE2d 92) (2009) (prior statements by witness
at police station on the night of the crime did not predate any alleged influence or
motive, because at the time, the defendant was accused of killing one of the witness’s
relatives, which may have influenced the witness’s statement).
(b) Ghann’s prior statement – Silvey also asserts that the trial court erred in
allowing the investigator to testify regarding Ghann’s statement about finding two
men at her house during her lunch break. Silvey’s counsel objected to such testimony
as bolstering, and the trial court overruled the objection.
15
Pretermitting whether the trial court erred in overruling Silvey’s objection, we
find no basis for reversal on this ground. To obtain a reversal based on an improperly
admitted prior consistent statement requires harmful error. See OCGA §24-1-103 (a)
(“Error shall not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected.”). “The improper admission of
bolstering evidence is a non-constitutional, evidentiary error, so we must determine
whether it is ‘highly probable’ that the error did not contribute to the jury’s guilty
verdict.” Cowart, 294 Ga. at 341 (4) (b). And in analyzing the issue, “we may not rely
on the fact that the witness gave testimony at trial that was consistent with the prior
statement that should not have been introduced. In other words, we cannot look to
[the witness’s] improperly bolstered testimony to show that the bolstering error was
harmless.” (Citation and punctuation omitted.) Id. at 341-42 (4) (b).
The investigator’s testimony recounted Ghann’s statement that she had come
home and found two young men in a maroon car in her driveway. She saw someone
in the house and a young man outside, who told Ghann that their car had overheated
and when the other man came out and what happened thereafter. Ghann never
identified Silvey as one of the two men, either to the investigator before trial or at
16
trial, and the investigator did not recount any description that Ghann gave of the men
involved.
During the cross-examination of Ghann, Silvey’s counsel confirmed that
Ghann could not identify the men she saw at her house that day, nor could she
positively identify Silvey’s car as the car she saw in her driveway. Otherwise, his
counsel repeatedly questioned Ghann about whether she had ever told police about
the hair color of the men involved prior to the eve of trial. During closing argument,
Silvey’s counsel asserted that Silvey did not fit the description of the taller, blonde
man Ghann described and suggested that her testimony regarding the men’s hair color
had been recently orchestrated by the prosecution.
But at no time did Silvey dispute Ghann’s description of the events as
recounted by the investigator at trial. Silvey’s defense was not based on a claim that
the incident did not happen in the manner Ghann described but rather on a claim that
he was not the man described by Ghann. Thus, because the facts set out in Ghann’s
statement as recited by the investigator were not in dispute, we find that it is highly
probable that the admission of Ghann’s prior consistent statement, even if erroneous,
did not contribute to the jury’s guilty verdict.
17
3. Silvey also contends that he received ineffective assistance of counsel during
the plea process and at trial.
(a) Plea Process – Silvey asserts that his trial counsel (“Trial Counsel”) was
ineffective for failing to adequately advise him about whether to accept the State’s
plea offer or to go to trial. To establish his claim of ineffective assistance of counsel
in the context of a plea bargain, Silvey must establish “that his counsel’s
representation fell below an objective standard of reasonableness and that the
outcome of the plea process would have been different with competent advice. Lafler
v. Cooper, __ U.S. __ (II) (A), (B) (132 SCt 1376, 182 LE2d 398) (2012).”
(Punctuation omitted.) Cruz v. State, 315 Ga. App. 843, 845 (1) (729 SE2d 9) (2012).
“In regard to the offer of a plea bargain, objective professional standards require that
a defendant be told that such an offer has been made and to be advised of the
consequences of the choices confronting the defendant.” (Citation omitted.) Dulcio
v. State, 292 Ga. 645, 652 (3) (f) (740 SE2d 574) (2013). Therefore, “[t]rial counsel
can be found to have rendered less than reasonably professional assistance if counsel
has not informed his client of a plea offer and advised him of the relative
consequences of accepting the offer versus going to trial.” State v. Lexie, 331 Ga.
App. 400, 402 (771 SE2d 97) (2015).
18
“In determining whether a defendant has been prejudiced by counsel’s failure
to communicate those choices accurately, we must examine the facts of each case to
determine whether there is at least an inference from the evidence that defendant
would have accepted the offer as made or something similar.” (Citation and
punctuation omitted.) Biggins v. State, 322 Ga. App. 286, 290 (3) (a) (744 SE2d 811)
(2013). Georgia courts “also have recognized the ‘self-serving nature of a defendant’s
post-conviction testimony regarding his intent with respect to a plea offer, and have
required some further ‘objective evidence’ that defendant would have accepted a plea
offer.’” (Citation and punctuation omitted.) Id. Moreover, we note that “[a] defendant
is entitled not to perfect representation but to reasonably effective assistance.” Turner
v. State, 246 Ga. App. 49, 57 (6) (539 SE2d 553) (2000).
Here, Silvey asserts that Trial Counsel never gave him enough information to
knowingly and voluntarily consider the State’s plea offer. The record demonstrates
that at the 404 (b) hearing, the trial court put on the record the State’s global offer to
settle all the charges in Morgan, Greene, and Putnam Counties for a sentence of
twenty years to serve, with the first ten in confinement and the remainder of
probation, along with fines and restitution. The trial court informed Silvey that his
exposure was 40 years on the burglary charges and then gave him the opportunity to
19
speak with his counsel about the offer. At the two hearings held on the motion for
new trial (the “Motion hearing”), Trial Counsel estimated that Silvey and he
discussed the plea offer for 30 minutes during the recess in the 404 (b) hearing.
Trial Counsel further testified that he had a number of discussions with Silvey
about the State’s offer, although he could not remember if the conversations were in
person or over the phone. Trial Counsel said he told Silvey about the terms of the
State’s offer, that he faced a potential sentence of 40 years on the Morgan County
burglaries, and that the witnesses against him were going to be “upstanding citizens
. . . probably known by some people on the jury.” Trial Counsel also recalled going
over the discovery with Silvey, and the State introduced a composition notebook
filled with Silvey’s notes on the cases, which Trial Counsel stated he reviewed and
discussed with Silvey.
Silvey testified at the Motion hearing that the first time he met Trial Counsel
was the day of the 404 (b) hearing, which was held the day before trial, and they did
not discuss his case until after he had already turned down the plea offer. Silvey said
he was unaware that his license tag had been identified at one of the burglaries, and
he did not know the State would play the video of his interrogation although he was
aware the video existed. However, Silvey conceded that Trial Counsel told him that
20
the State’s offer was for all 12 pending burglary counts in Morgan, Greene, and
Putnam Counties. Silvey also acknowledged that he had heard the testimony of
Shaifer, Ghann, Meeler, and the Madison police before trial at a probation revocation
hearing where his probation was revoked for committing the Morgan County
burglaries, and thus, he “had a good idea” of how the evidence was going to come
out. But he asserted that Trial Counsel never discussed the significance of that
evidence with him.
We find that the evidence from the Motion hearing supports a finding that Trial
Counsel adequately discussed and explained the State’s plea offer and the
consequences of rejecting it. Although Silvey contradicted his attorney’s testimony
regarding their discussions, “[w]hen considering claims of ineffectiveness of counsel,
the trial judge determines witness credibility and is not required to accept the
defendant’s version of events.” (Citation and punctuation omitted.) Ansley v. State,
325 Ga. App. 226, 235 (4) (a) (750 SE2d 484) (2013). Moreover, the trial court put
the State’s offer on the record and Silvey was informed that he could receive 40 years
on the Morgan County burglaries, yet he chose to proceed to trial.
Under these circumstances, we find that Silvey has failed to establish that he
received ineffective assistance of counsel in connection with the State’s plea offer.
21
(b) Trial – Silvey also asserts that Trial Counsel’s performance was deficient
during trial because he failed to object during the State’s closing argument and to
Webb’s testimony about other burglaries that Webb had committed.
In order to prevail on a claim of ineffective assistance of counsel,
appellant must show counsel’s performance was deficient and that the
deficient performance prejudiced him to the point that a reasonable
probability exists that, but for counsel’s errors, the outcome of the trial
would have been different. A strong presumption exists that counsel’s
conduct falls within the broad range of professional conduct. If a
defendant fails to meet his burden on one prong of the two-prong test,
then the other prong need not be reviewed by the Court.
(Citation omitted.) Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014).
(i) Silvey asserts that his attorney was ineffective in failing to raise a
contemporaneous objection when the State referenced facts not in evidence during
closing argument. During the State’s closing, the prosecutor stated that neither her co-
counsel nor she had promised anything to Webb in exchange for his testimony,
and even more importantly, he’s been promised nothing by the . . .
jurisdiction outside this circuit who he also has cases that he
acknowledged. We don’t have any control over what, you know,
Taliaferro County does or whatever the other counties are, Walton,
whatever he said. We don’t have any control over them.
22
The record demonstrates that Trial Counsel, in fact, objected to this argument
on the ground that Webb had not testified about being in other jurisdictions.10 After
argument from counsel, the trial court denied the objection. Silvey argues that his
attorney waited approximately one minute before raising this objection, and if he had
raised it in a timely fashion, “the lower court should have sustained [it].” However,
the record demonstrates that the trial court denied the objection on its merits, not on
its timing. Therefore, Silvey cannot establish that Trial Counsel’s performance was
deficient in this regard.
(ii) Silvey also contends that his trial court was deficient in failing to
contemporaneously object to the portion of the State’s closing argument suggesting
that Silvey intentionally changed his appearance for trial by cutting his hair and
shaving his facial hair, noting, “If identity is the issue you plan to argue at trial, isn’t
it in your best interest to look as different as you possibly can at trial? I submit to you
that’s really the question you should be asking here.”
Once again, Trial Counsel objected to this argument and even requested a
mistrial, asserting that his client was in prison and thus had no choice as to his hair
10
We note, however, that Webb testified that he had been charged with
burglaries that did not occur in the same circuit as the Morgan County burglaries.
23
style. Although Silvey contends that the objection was untimely, the trial court
considered the objection on its merits and overruled it, finding that Silvey’s attorney
had opened the door to this argument when he attacked the prosecution by suggesting
that they had orchestrated Ghann’s description of the men at her house. Accordingly,
Silvey has failed to show that he received ineffective assistance of counsel on this
ground.
Alternatively, Silvey asserts that the trial court erred in denying his counsel’s
objection. However,
[t]he permissible range of closing argument . . . is very wide. A
prosecutor is granted wide latitude in the conduct of closing argument,
the bounds of which are in the trial court’s discretion; within the scope
of such latitude is the prosecutor’s ability to argue reasonable inferences
from the evidence, including any that address the credibility of
witnesses.
(Citation and punctuation omitted.) Lamar v. State, 297 Ga. 89, 93 (3) (772 SE2d
636) (2015). See also Varner v. State, 285 Ga. 300, 301 (2) (c) (676 SE2d 189)
(2009) (counsel have “‘wide leeway . . . to argue all reasonable inferences that may
be drawn from the evidence during closing argument’”) (citations omitted). “Requests
to limit the scope of closing argument are addressed to the sound discretion of the
24
trial court, and the trial court’s resolution of such matters will not be reversed on
appeal absent an abuse of that discretion.” Smith v. State, 284 Ga. 599, 602 (2) (a)
(669 SE2d 98) (2008).
Here, the record indicates that Silvey’s appearance had changed between the
time of the Morgan County burglaries and trial; he had trimmed his hair very short,
and it appeared darker than at the time of the burglaries. His face was devoid of facial
hair, although he previously had worn a goatee. Although Silvey argues that he had
no control over his appearance because he was in prison, the prison regulations he
introduced at the Motion hearing indicate that he was allowed to wear his hair up to
three inches long on top. And even though the regulations prevented him from
wearing a goatee, they allowed mustaches of a prescribed length. The State’s
argument that Silvey had intentionally changed his appearance to make identification
more difficult was a reasonable inference from the evidence, and we find no abuse of
discretion by the trial court in overruling Silvey’s objection and denying his request
for a mistrial. See Lamar, 297 Ga. at 93 (3); Varner v. State, 285 Ga. at 301 (2) (c).
(iii) Silvey further argues that Trial Counsel was ineffective when he failed to
object when the State elicited testimony that Silvey contends raised an inference he
was involved in 12 other burglaries. In the cited testimony, Webb admitted that he
25
committed the fourteen burglaries with which he was charged, and only committed
two of them alone, but he never testified that Silvey was involved in the other twelve
burglaries. Silvey asserts that this evidence nevertheless violated the trial court’s
ruling at the Rule 404 (b) hearing excluding evidence of the two Putnam County
burglaries, because the jury could only conclude from the testimony, and the fact that
Webb never testified that he committed burglaries with anyone else, that Silvey was
involved in all the burglaries that Webb did not commit alone.
At the Motion hearing, Trial Counsel testified that he did not object because
the inference he drew from this evidence was that Webb had been committing
burglaries all over the State. He did not think that the testimony hurt Silvey, noting
that Webb never testified that Silvey was the only person with whom he ever
committed burglaries and that he believed no such inference arose at trial.
“Trial tactics and strategy, no matter how mistaken in hindsight, are almost
never adequate grounds for finding trial counsel ineffective unless they are so
patently unreasonable that no competent attorney would have chosen them.” (Citation
and punctuation omitted.) Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452)
(2013). “[T]he making of objections falls within the realm of trial tactics and strategy
26
and thus usually provides no basis for reversal of a conviction.” (Citations and
punctuation omitted.) Moon v. State, 288 Ga. 508, 516 (9) (705 SE2d 649) (2011).
Here, Trial Counsel’s strategic decision not to object to this testimony was not so
patently unreasonable that it amounted to deficient performance, and thus Silvey
failed to prove ineffective assistance of counsel on this ground.
Judgment affirmed. Barnes, P. J., concurs. Ray, J., concurs fully in Divisions
1, 2 (b), 3 (a) and 3 (b)(i) and (iii) and concurs in judgment only as to Divisions 2 (a)
and 3 (b)(ii).
27