Houston v. the State , 335 Ga. App. 481 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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
January 14, 2016
In the Court of Appeals of Georgia
A15A1828. HOUSTON v. THE STATE. BO-070C
BOGGS, Judge.
A jury found Anthony Houston guilty of armed robbery.1 Following the denial
of his motion for new trial, Houston appeals, asserting as error the trial court’s ruling
on an objection and also asserting that he received ineffective assistance of counsel.
For the following reasons, we affirm.
Construed in favor of the verdict, the evidence showed that the victim stopped
to offer a ride to her friend Kristlin Simmons and Simmons’ boyfriend, Houston,
whom the victim did not know. Simmons and Houston were walking down the street
around midnight. Houston told the victim that they did not need a ride, but Simmons
decided to accept the victim’s offer and got into the front passenger’s seat. After
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The jury acquitted Houston on a charge of kidnapping.
Simmons entered the car, Houston pulled her out and repeatedly told her “b****,
you’re not going nowhere.” Houston took Simmons’ belongings and “threw them out
into the street.” When Simmons objected to his actions, Houston slapped her. The
victim became “nervous and scared” because Houston was “throwing . . . things and
cussing and fussing.” After arguing with Simmons for a moment, Houston jumped
into the passenger side of the victim’s car, pulled out a gun, ordered the victim out of
the car, and then “put [the gun] to [the victim’s] face and he was, like, give me
everything you’ve got.” The victim told Houston that she did not have anything and
begged him to allow her to remove her baby from the back seat: “My purse was in the
car. My baby was in the car. I said, I don’t have anything. Everything I got is in the
car. I said, you just let me get my baby, you know, you can just leave.” After allowing
the victim to get her baby, Houston drove away in the victim’s car. The victim’s and
Simmons’ testimony that Houston pulled out a gun was uncontradicted.
1. Houston argues that the trial court erred in overruling his objection to the
State’s question to the victim regarding her identification of him as the armed robber.
The prosecutor asked the victim about her identification of Houston from a
photographic lineup: “How certain were you at the time . . . . How certain were you
that this is the young man that robbed you that night?” The victim responded, “Very
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certain.” Houston’s counsel objected, but the trial court allowed the question and
answer.
Houston acknowledges that the trial court did not instruct the jury regarding
the victim’s level of certainty in violation of Brodes v. State, 279 Ga. 435, 442-443
(614 SE2d 766) (2005). He argues, however, that a violation nevertheless occurred
because of the victim’s testimony regarding her level of certainty coupled with the
trial court’s instruction to the jury that the evidence includes all of the testimony of
the witness and that “identity is a question of fact for you to determine.” We have
found no authority concluding that this combination constitutes a violation of Brodes,
supra, and we decline to hold so here.
We have held that
In Brodes, our Supreme Court held that it could no longer endorse an
instruction authorizing jurors to consider the witness’s certainty in
his/her identification as a factor to be used in deciding the reliability of
that identification, and advised trial courts to refrain from giving the
“level of certainty” instruction to jurors. The Brodes decision does not,
however, prohibit an identification witness from testifying about his or
her level of certainty, or restrict the state from inquiring about the same.
As we noted in Best v. State, [279 Ga. App. 309 (630 SE2d 900)
(2006),] a defendant can challenge such testimony through
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cross-examination, expert testimony, or the presentation of testimony
from other eyewitnesses.
(Citations, punctuation and footnotes omitted.) Clark v. State, 285 Ga. App. 182, 185
(4) (645 SE2d 671) (2007); see also Smith v. State, 303 Ga. App. 831, 835-836 (5)
(695 SE2d 86) (2010) (trial counsel’s performance not deficient for failure to pursue
futile objection to witness’ testimony that he was 100 percent certain that defendant
was person he saw in parking lot of bank following armed robbery). Moreover, the
record reveals that the trial court properly instructed the jury regarding the factors to
consider in assessing the reliability of a witness’ identification. The court’s
instructions were nearly identical to the suggested pattern jury instructions. See
Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions,
Vol. II, Criminal Cases § 1.35.10. (Identification; Reliability). See, e.g., Gamble v.
State, 291 Ga. 581, 582-583 (2) (731 SE2d 758) (2012) (court correctly instructed
jury on facts it may consider in assessing reliability of witness identification).2
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Houston enumerates no error with regard to the trial court’s instructions to the
jury.
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We therefore hold that the trial court did not err in overruling Houston’s
objection to the State’s questioning of the victim regarding the level of certainty of
her identification.
2. Houston contends that his trial counsel was ineffective in failing to request
a jury instruction on the lesser included charges of robbery and theft by taking. He
asserts that because his sole defense was that only a theft by taking occurred, it was
error not to instruct the jury on the lesser charges.
To establish ineffectiveness under the standard of Strickland v. Washington,
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),
an appellant must show that (1) counsel’s performance was deficient and
(2) the deficiency so prejudiced his defense that a reasonable possibility
exists that the trial’s outcome would have been different but for that
deficiency. We need not address both prongs of this test if the showing
on one prong is insufficient, nor must we address them in any particular
order.
(Citations, punctuation and footnotes omitted.) Jackson v. State, 248 Ga. App. 7, 10-
11 (4) (545 SE2d 148) (2001). “We accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we independently apply the
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legal principles to the facts.” (Citation omitted.) Robinson v. State, 277 Ga. 75, 76
(586 SE2d 313) (2003).
“The court must charge the jury on a lesser included offense if . . . there is any
evidence that he committed the lesser included offense. But where the evidence
shows either the completed offense, as averred, or no offense, such evidence will not
support a verdict for one of the lesser grades of the offense .” (Citations, punctuation
and footnotes omitted.) Miller v. State, 259 Ga. App. 244, 246 (1) (576 SE2d 631)
(2003). Moreover, “[a] charge on the defendant’s sole defense is mandatory only if
there is some evidence to support the charge.” (Citation, punctuation and footnote
omitted.) Id. at 246 (2).
Here, the uncontradicted evidence showed that Houston forced the victim from
her car at gunpoint and then drove away in the car. There was no evidence to
contradict his use of a gun. Because the evidence showed either that Houston
committed an armed robbery or no crime at all, he was not entitled to a jury
instruction on the lesser offenses. See Jackson, supra, 248 Ga. App. at 9 (2); Jones
v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998) (“Where the uncontradicted
evidence shows completion of the offense of armed robbery, and no evidence is
presented to the effect that a weapon was not used in the robbery, the defendant is not
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entitled to a jury charge on the lesser included offenses of theft by taking or robbery
by intimidation. [Cit.]”)
Trial counsel therefore did not perform deficiently in failing to request jury
instructions on the lesser offenses. As Houston has failed to satisfy the first prong of
the Strickland standard, his ineffective assistance claim fails.
Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.
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