ROBERTS v. the STATE. ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, 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
January 25, 2018
In the Court of Appeals of Georgia
A17A1608. ROBERTS v. THE STATE.
DILLARD, Chief Judge.
Following trial in the Superior Court of DeKalb County, a jury convicted
Santee Roberts of one count of violating the Georgia Racketeer Influenced and
Corrupt Organizations Act (“RICO”), one count of identity fraud, one count of
financial-transaction-card fraud, and two counts of exploitation of an elder person.
On appeal, Roberts challenges the sufficiency of the evidence supporting her
convictions and further argues that the trial court erred in denying her motion to
prohibit news media from taking still photographs in the courtroom during trial,
admitting into evidence earlier indictments and her guilty pleas to similar crimes in
the Superior Court of Fulton County, and denying her claims of ineffective assistance
of counsel. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that throughout the spring and summer of 2009, dozens of senior citizens living in
DeKalb and Fulton Counties received telephone calls, in which a female claiming to
be a representative of Georgia Power Company named Tonya McCloud would inform
them that their utility bill had not been paid and that their power would be cut off if
they did not provide her with credit card, bank account, or other personal and
financial information. Many of these victims complied with the caller’s request,
which then resulted in their credit cards or ATM cards being used without their
permission to make purchases or obtain cash. For instance, in May of 2009, 65 year-
old M. C. received a phone call from a woman who claimed to be a representative of
Georgia Power and informed her that her power was going to be turned off because
of her failure to make payments on her bill. The caller then explained that M. C. could
avoid disruption in service if she provided her credit-card information. M. C.
complied, but later, she determined that she had been targeted by someone engaging
in fraud. And indeed, after contacting her credit-card company, she learned that her
card had been used for numerous purchases and cash advances totaling nearly $8,000.
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
2
In a similar incident, around noon on Saturday, July 4, 2009, 76 year-old E. K.
was preparing food for a Fourth of July party when she received a telephone call from
a woman who identified herself as Tonya McCloud, an employee with the Georgia
Power Company. The caller told E. K. that her power bill had not been paid and
claimed that she needed to provide personal information, checking-account
information, and a credit-card account number if she wanted to avoid having her
power cut off. Worried about her ill husband who would not fare well without air-
conditioning, E. K. provided the information as requested. Later that evening, the
purported Ms. McCloud called again and this time connected E. K. with a man who
claimed to be a representative of Bank of America, confirmed that E. K.’s most recent
payment to Georgia Power had not cleared, and told her that this man would assist her
in making payment on the Georgia Power account if she placed a credit card in her
mailbox, where it could be retrieved by a bank representative. E. K. again complied.
Within a few minutes of doing so, she observed a vehicle park near her mailbox, at
which point a tall male she did not recognize retrieved her credit card and left. Shortly
thereafter, E. K. concluded that she had probably been the victim of a scam.
Consequently, on Monday morning, she called her bank to report the incident and
3
learned that over the weekend her credit card had been used to make purchases at
several gas stations, restaurants, and grocery stores.
Later that same month, 79 year-old B. W. received a phone call and noticed that
the caller identification feature on her phone indicated that the caller was “Georgia
Power.” When B. W. answered the phone, the caller told her that there had been a
problem with her last payment for her power bill and that she would have to repay the
amount due immediately to avoid having her service disrupted. The caller then
instructed B. W. to place her credit card and bank ATM card in an envelope, and an
employee would arrive shortly to take the envelope to the local office to make
payment on her behalf. B. W. did as directed, and a short time later, a young man
came to her door, asked for the envelope, and left in a vehicle that was parked on the
street. That same afternoon, B. W.’s bank called to advise that her card had been used
to make suspicious purchases.
All told, over the course of the spring and summer of 2009, approximately 71
victims, including 35 victims in DeKalb County, reported being targeted by the
perpetrators of this Georgia Power ruse. And based on the victims’ subsequent
reporting of these incidents, as early as the spring of 2009, a supervisor of security
for Georgia Power and the Clayton and Fulton County Police Departments initiated
4
investigations. These investigations eventually lead them to a motel room off of
Fulton Industrial Boulevard, and on April 28, 2009, officers knocked on the door of
Room 159 of the motel and encountered a woman who identified herself as Nadine
Simmons but claimed to not have any identification. After running the woman’s name
and birth date through their computer system and determining that no such person
existed, the officers again asked the woman to provide identification, and again, she
claimed she could not do so. Consequently, the officers arrested the woman, and
during a safety sweep of the motel room, they recovered several credit cards bearing
the names of different people and an identification card that had the woman’s
photograph but a different name than the one she had provided.
Following the arrest, the officers transported the woman to the local police
precinct to interview her. And after conducting some research, the lead detective
investigating the case determined that the woman’s true identity was Santee Roberts.
But before she could be interviewed, Roberts began complaining that she felt ill and
needed medical attention. Thus, the detective called emergency medical personnel,
who decided to transport Roberts to the hospital for treatment. After finishing some
paperwork, the detective prepared to follow the ambulance to the hospital but was
stopped by a female officer, who told him that she had just been in the women’s
5
restroom and had found dozens of credit cards and bank cards bearing various names
stuffed into the toilet-seat-cover dispenser in one of the restroom’s stalls. Knowing
that Roberts had been the only female arrestee allowed to use the restroom that day,
the detective collected this additional evidence and proceeded to the hospital. There,
Roberts confirmed her true identity, and the detective issued several citations to her,
which included notice that she was to appear in court on May 20, 2009, to answer the
charges. But Roberts failed to appear, and almost immediately, reports resumed from
senior citizens claiming that a female Georgia Power representative had called them,
requesting credit card and other financial information.
For the next few months, the detective and the Georgia Power security
supervisor attempted to track down Roberts, but she proved to be elusive. Then, on
August 14, 2009, 65 year-old F. S. was at her home in East Point, when she received
a call from a female who claimed to be a representative of her gas company and
informed her that her service was going to be cut off because she had failed to pay her
last bill. The caller then told F. S. that this disruption could be avoided if she
provided her credit-card information over the phone. But a few minutes later, a male
voice came on the line and told F. S. that the transaction had not processed and that
she should put her bank card in her mailbox for a representative to retrieve. F. S. told
6
the caller she would do as requested, but immediately after ending the call, she called
her son and informed him about the incident, and he, in turn, called the police.
Not long thereafter, an officer with the East Point Police Department arrived
at F. S.’s home and began interviewing her about the suspicious phone call. And
while speaking with F. S. in her front yard, the officer noticed a white vehicle pull up
to her mailbox. F. S. also noticed the vehicle and mentioned to the officer that it had
driven by earlier and paused near her mailbox. Upon learning this, the officer
immediately called for backup to block the streets leading in to F. S.’s neighborhood.
A few minutes later, the officer returned to his patrol car and began driving around
the neighborhood looking for the white vehicle. Approximately one block over from
F. S.’s home, the officer spotted the vehicle parked in the driveway of another home
and saw two females walk out from behind the house. Initially, the women denied
being the occupants of the vehicle. But after the homeowner came outside and told
the officer that he did not know the women, they admitted that they had been in the
car but claimed that a man named Steve had been driving and that he had fled after
parking. In response to the officer’s questions, the women identified themselves as
Tracy Jones and Joanne Brown, but their information did not match any persons in
the GCIC database. Given these circumstances, the officer detained both of them for
7
further questioning. The women were then transported to the precinct, and the officer
began compiling an inventory of the contents of the vehicle, which neither woman
claimed to own. While doing so, the officer observed a mobile phone on the vehicle’s
backseat, which then began ringing. Picking the phone up, the officer realized that it
was F. S.’s number that was calling. The officer answered the phone and identified
himself, at which point F. S. said that she was calling the number of the person who
had claimed to be the gas-company representative.
After transporting the two women to the police precinct, a detective determined
that the actual identity of the younger of the two was Roberts, and the older woman
was identified as Charlene Merkerson. Both women then complained of feeling ill
and requested medical treatment. Thus, the police called emergency personnel, who
examined both women and recommended that Merkerson be taken to the hospital, as
she was exhibiting signs of high blood pressure, but stated that Roberts’s vitals were
normal. Upon determining Roberts’s identity, the detective arrested her, but
Merkerson, at some point after being transported to the emergency room, fled and
was never apprehended.
8
Thereafter, the State charged Roberts, Merkerson, and Donald Crane,2 via
indictment, with one count of violating the Georgia Racketeer Influenced and Corrupt
Organizations Act by conspiring to commit identity fraud, committing identity fraud,
and committing financial-transaction-card fraud, one count of identity fraud, one
count of financial-transaction-card fraud, and two counts of exploitation of an elder
person. The case then proceeded to trial, during which the State presented the
aforementioned evidence. Additionally, the State presented video surveillance footage
of Roberts attempting to make purchases at various stores using victims’ credit and
bank cards. The State also presented evidence that Roberts had committed similar
crimes in Michigan, which involved her posing as a utility-company representative
in order to obtain victims’ credit card and other financial information and, in fact,
pleaded guilty to such crimes in the United States District Court for the Northern
District of Michigan in 2003. Finally, as further evidence that Roberts engaged in a
pattern of racketeering, the State presented recent indictments in the Superior Court
of Fulton County, charging Roberts with similar crimes, and her subsequent guilty
2
Crane, apparently, was the male caller on some of the phone calls made to the
victims. It is unclear from the record if he was ever apprehended. Nevertheless,
neither Crane nor Merkerson were tried with Roberts.
9
pleas to those crimes. And at the trial’s conclusion, the jury convicted Roberts on all
counts.
Thereafter, Roberts obtained new counsel and filed a motion for new trial, in
which she argued, inter alia, that her trial counsel rendered ineffective assistance.
Nevertheless, after a hearing on the matter, in which her trial counsel testified, the
trial court denied Roberts’s motion. This appeal follows.
1. We first address Roberts’s rather general contention that the evidence was
insufficient to support her convictions. And after consideration of this argument, we
find that it lacks merit.
When a criminal conviction is appealed, the evidence must be viewed in the
light most favorable to the verdict, and the appellant no longer enjoys a presumption
of innocence.3 And, of course, in evaluating the sufficiency of the evidence, we do
not “weigh the evidence or determine witness credibility, but only determine whether
a rational trier of fact could have found the defendant guilty of the charged offenses
beyond a reasonable doubt.”4 Thus, the jury’s verdict will be upheld so long as “there
3
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).
4
Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation
omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979).
10
is some competent evidence, even though contradicted, to support each fact necessary
to make out the State’s case.”5 With these guiding principles in mind, we turn now
to Roberts’s claim of error.
Focusing first on the offenses that formed the predicate acts of the RICO
violation, as well as separate counts on their own, at the time of the indictment,
OCGA § 16-9-121 (a) (1) provided: “A person commits the offense of identity fraud
when he or she willfully and fraudulently . . . [w]ithout authorization or consent, uses
or possesses with intent to fraudulently use, identifying information concerning an
individual. . . .” And “identifying information” includes checking-account numbers,
credit-card numbers, and debit-card numbers.6 In the same time frame, OCGA § 16-9-
122 provided: “It shall be unlawful for any person to attempt or conspire to commit
any offense prohibited by this article.” Additionally, OCGA § 16-9-33 (a) (2) (B)
provided:
A person commits the offense of financial transaction card fraud when
with intent to defraud the issuer; a person or organization providing
5
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation
omitted); accord Westbrooks v. State, 309 Ga. App. 398, 399-400 (1) (710 SE2d 594)
(2011).
6
See former OCGA § 16-9-120 (4) (D), (F), (G) (2008).
11
money, goods, services, or anything else of value; or any other person,
[she] . . . [o]btains money, goods, services, or anything else of value by
. . . [p]resenting the financial transaction card without the authorization
or permission of the cardholder[.]
Furthermore, under the former version of OCGA § 30-5-8,7 “[i]n addition to any other
provision of law, the abuse, neglect, or exploitation of any disabled adult or elder
person shall be unlawful.”8 And former OCGA § 30-5-3 (7.1) defined “[e]lder
person” as “a person 65 years of age or older who is not a resident of a long-term care
facility. . . .”9
Turning to the RICO violation charge, at the time the indictment in this case
issued,10 OCGA § 16-14-4 (a) of the Georgia RICO Act provided: “It is unlawful for
any person, through a pattern of racketeering activity or proceeds derived therefrom,
to acquire or maintain, directly or indirectly, any interest in or control of any
enterprise, real property, or personal property of any nature, including money.” A
7
See Ga. L. 2009, Act 147, § 2 (effective July 1, 2009).
8
See former OCGA § 30-5-8 (a) (1) (2009).
9
See former OCGA § 30-5-3 (7.1) (2009)
10
In 2015, the RICO Act was amended in several minor respects, but those
amendments did not become effective until July 1, 2015, and have no bearing on this
appeal. See Ga. L. 2015, Act 98, § 2-25.
12
person participates in a “pattern of racketeering activity” when he or she engages “in
at least two acts of racketeering activity in furtherance of one or more incidents,
schemes, or transactions that have the same or similar intents, results, accomplices,
victims, or methods of commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents. . . .”11 And under that statute, the term
“‘[r]acketeering activity’ means to commit” a number of crimes chargeable by
indictment under the laws of Georgia, as delineated in OCGA § 16-14-3 (9) (A) (i)
– (xxxvii), including the crimes relating to the unlawful use of financial-transaction
cards and identity fraud.12
As previously mentioned, Count 1 of the indictment charged Roberts with
violating the RICO Act by committing the overt acts of conspiracy to commit identity
fraud, identity fraud, and financial-transaction-card fraud with respect to dozens of
mostly elderly victims. Count 2 charged her with identity fraud, alleging that she “did
11
See former OCGA § 16-14-3 (8) (A) (2009). We recognize that some of the
acts of racketeering that the State alleged to support the RICO charge against Roberts
occurred prior to the July 1, 2009 effective date of this statute. See Ga. L. 2008, Act
528, § 9. But the 2008 amendments to the 2006 version of OCGA § 16-14-3 were
minor and have no bearing on this appeal. Compare Ga. L. 2006, Act 451, § 2, with
Ga. L. 2008, Act 528, § 9.
12
See former OCGA § 16-14-3 (9) (A) (xxiii), (xxxvi) (2009).
13
willfully and fraudulently, possess with intent to fraudulently use a Bank of America
financial transaction card account number, identifying information concerning an
individual, to wit: [B. W.], by attempting to charge $426.93 to said account number
at Wal-Mart, without the authorization or consent of [B. W.].” Count 3 charged
Roberts with financial-transaction-card fraud, alleging that she “with the intent to
defraud Bank of America . . . did unlawfully use a financial transaction card retained
with knowledge that it was retained in violation of Code Section 16-9-31 . . . for the
purposes of obtaining U. S. currency, to-wit; the accused withdrew $500.00 from the
account of [B. W.] at a Bank of America ATM.” And Counts 4 and 5 charged her
with exploitation of an elder person, B. W. and E. K., respectively, alleging that she
“did willfully exploit [the victim], an elder person who is more than 65 years of age
. . . by the illegal and improper use of the resources of [the victim], by calling [the
victim] at her home and taking her financial transaction card from her mailbox, using
false pretense, deception, and misrepresentation, for [her] own profit.”
Here, as discussed in detail supra, the evidence showed that over the course of
several months, Roberts, with Merkerson’s assistance, participated in a scheme, in
which she and her cohorts obtained elderly victims’ credit card, banking, and other
financial and personal information by telephoning the victims, while posing as utility-
14
company representatives, and informing them that their power would be cut off if
they did not immediately provide such information. In several of these phone calls,
including those made to B. W. and E. K., Roberts and her accomplices convinced the
victims to place their credit and bank cards in their mailboxes so they could retrieve
them. As a result of this skulduggery, Roberts used the cards or the account numbers
to make purchases at grocery stores, gas stations, and other retail outlets, and to
obtain cash advances. Given these particular circumstances, the evidence was
sufficient to support Roberts’s convictions on the charges of identity fraud, financial-
transaction-card fraud, and of exploitation of an elder person.13 Furthermore, because
13
See Marks v. State, 280 Ga. 70, 72 (1) (a) (623 SE2d 504) (2005) (finding
that defendant’s use of elder person’s credit card to wire more than $5,000 to
defendant’s relative supported his conviction for elder abuse); Daniel v. State, ___
Ga. App. ___, Slip op. at 4 (1) (b) (Case No. A17A0746; decided August 2, 2017)
(holding that evidence that defendant stole victim’s credit card and gave it to an
accomplice who fraudulently used it to make a purchase at a convenience store was
sufficient to support defendant’s conviction for identity fraud); Smith v. State, 322
Ga. App. 433, 435-36 (1) (a) (745 SE2d 683) (2013) (holding that evidence the
defendant and accomplice used victim’s bank-account numbers without permission
to make purchases at an electronics store was sufficient to support defendant’s
conviction for identity fraud); Epps v. State, 262 Ga. App. 113, 113-14 (1) (584 SE2d
701) (2003) (holding that evidence that defendant purchased items at a department
store using a stolen credit-card number was sufficient to support defendant’s
conviction for financial-transaction-card fraud); Rogers v. State, 259 Ga. App. 516,
517-18 (1) (578 SE2d 169) (2003) (finding that evidence that defendant used his
former brother-in-law’s credit card without permission to make various purchases
sufficiently supported defendant’s conviction for financial-transaction-card fraud).
15
the evidence was sufficient to sustain her convictions for these predicate acts, the
evidence was also sufficient to sustain Roberts’s RICO conviction.14
2. Roberts also contends that the trial court erred in denying her motion to
prohibit news media from taking still photographs in the courtroom during trial.
Again, we disagree.
Rule 22 (P) of the Uniform Rules of Superior Court provides that “[a] request
for installation and use of electronic recording, transmission, videotaping or motion
picture or still photography of any judicial proceeding shall be evaluated pursuant to
the standards set forth in OCGA § 15-1-10.1.”15 And under that Code section, when
considering a request to photograph judicial proceedings, a trial court may consider,
among other things, “[t]he consent or objection of the parties or witnesses whose
testimony will be presented in the proceedings”; whether the “proposed coverage will
promote increased . . . openness of judicial proceedings”; “[t]he impact upon the
integrity and dignity of the court”; “[t]he impact on the administration of the court”;
14
See Akintoye v. State, 340 Ga. App. 777, 782 (1) (d) (798 SE2d 720) (2017)
(holding that evidence the defendant committed predicate crimes was sufficient to
support defendant’s conviction on RICO charge based on such crimes); Kilby v. State,
335 Ga. App. 238, 241-42 (1) (a) (780 SE2d 411) (2015) (same).
15
Ga. Unif. Sup. Ct. R. 22 (P).
16
and “[t]he impact upon due process and the truth finding function of the judicial
proceeding.”16 Importantly, in ruling on a request for electronic and photographic
coverage of judicial proceedings, a trial court should “bear in mind this State’s policy
favoring open judicial proceedings.”17
Here, during a hearing just prior to the start of her trial, Roberts moved to
prohibit a local news organization from setting up a camera and microphones in the
courtroom. Roberts argued generally that she believed cameras would have an
adverse impact on the court. She also maintained that cameras would impact her due-
process rights, claiming that she had been harassed and subjected to abuse by officers
at the jail because they had been made aware, via media reports, that she was charged
with defrauding elderly people. Nevertheless, the trial court denied her motion,
finding that the reasons provided by Roberts did not outweigh the State’s policy in
favor of open judicial proceedings.
As previously noted, Roberts argues that the trial court’s denial of her motion
to bar cameras from the courtroom constituted error, but we disagree. Although
16
OCGA § 15-1-10.1 (b) (2)-(6).
17
Morris Commc’ns, LLC v. Griffin, 279 Ga. 735, 736 (620 SE2d 800) (2005);
accord McLaurin v. Ott, 327 Ga. App. 488, 491 (4) (759 SE2d 567) (2014).
17
Roberts’s allegations that she was harassed and abused by officers at the jail where
she was held are troubling if true, she has failed to demonstrate how such actions,
which (even if true) occurred outside the courtroom, impacted upon the due process
and the truth-finding function of the judicial proceeding. Accordingly, we conclude
that the trial court did not abuse its discretion in allowing cameras in the courtroom.18
3. Roberts further contends that the trial court erred in admitting into evidence
earlier indictments for, and her guilty pleas to, similar crimes in the Superior Court
of Fulton County. Yet again, we disagree.
In this matter, just before the State rested its case, the State’s prosecutor sought
to admit into evidence two indictments from the Superior Court of Fulton County, in
which Roberts had been similarly charged with identity fraud, financial-transaction-
card fraud, and exploitation of an elder person, relating to some of the elderly victims
18
See Smith v. Gwinnett Cty., 270 Ga. 424, 425 (2) (510 SE2d 525) (1999)
(holding that despite showing they did not consent to television coverage of the
judicial proceedings, defendants failed to demonstrate that other factors under OCGA
§ 15-1-10.1 (b) (2) weighed in favor of prohibiting such coverage and, therefore,
failed to show that trial court abused its discretion in allowing television coverage of
the judicial proceedings). Cf. Griffin, 279 Ga. at 736-37 (holding that trial court erred
in denying the newspaper’s motion to use a camera during defendant’s trial, because
although defendant claimed that his due process rights would be impacted by such
use, neither he nor trial court specifically showed how the use of a camera would
violate such rights).
18
she had targeted in Fulton County, and her guilty pleas to those offenses. Specifically,
the State argued that the indictments and Roberts’s guilty pleas were admissible as
evidence of a pattern of racketeering activity. Roberts objected to the admission of
these indictments and pleas, but the trial court allowed them into evidence.
Roberts argues that the prejudice in admitting the Fulton County indictments
and her guilty pleas into evidence far outweighed their probative value, and thus, such
evidence should have been excluded. But the RICO statutory provisions provide for
evidence under OCGA § 16-14-3 (2) of “a carefully defined ‘[p]attern of racketeering
activity’ that the defendant has engaged in ‘within four years after the commission of
a prior incident of racketeering activity[.]’”19 This, in turn, comports with the
provisions of OCGA § 16-14-2 (b), “which specifically provides that RICO does not
apply to isolated instances of criminal activity.”20 Consequently, given that the State
was required to prove a series or pattern of illegal activities, the trial court did not err
in admitting the Fulton County indictments and Roberts’s guilty pleas to same.21
19
Brown v. State, 191 Ga. App. 76, 78 (2) (381 SE2d 101) (1989) (punctuation
omitted).
20
Id. (punctuation omitted).
21
See id. (holding in defendant’s trial on RICO charges that an indictment and
sentence in defendant’s prior companion case was admissible to prove the requisite
19
4. Finally, Roberts contends that the trial court erred in denying her claims that
her counsel rendered ineffective assistance by failing to object to the State
prosecutor’s leading questions and by, generally, failing to present an adequate
defense. Once again, we disagree.
In order to evaluate Roberts’s claim of ineffective assistance of counsel, we
apply the two-pronged test established in Strickland v. Washington,22 which requires
Roberts to show that her trial counsel’s performance was “deficient and that the
deficient performance so prejudiced [her] that there is a reasonable likelihood that,
but for counsel’s errors, the outcome of the trial would have been different.”23 In
addition, there is a strong presumption that trial counsel’s conduct falls within the
broad range of reasonable professional conduct, and a criminal defendant must
overcome this presumption.24 Unless clearly erroneous, this Court “will uphold a trial
pattern of racketeering activity).
22
466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
23
Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see
Strickland, 466 U.S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730
SE2d 37) (2012).
24
Chapman, 273 Ga. at 350 (2); see Cammer v. Walker, 290 Ga. 251, 255 (1)
(719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by
whether counsel rendered reasonably effective assistance, not by a standard of
20
court’s factual determinations with respect to claims of ineffective assistance of
counsel; however, a trial court’s legal conclusions in this regard are reviewed de
novo.”25 Bearing this framework in mind, we turn now to Roberts’s claims.
(a) Failing to object to leading questions. During Roberts’s trial, the State
called as a witness the Fulton County Police Department detective who ultimately
tracked down Roberts to the motel on Fulton Industrial Boulevard. And during the
detective’s direct testimony, the following colloquy with the State’s prosecutor
regarding his initial encounter with Roberts in the doorway of her motel room
occurred:
Q. And at the point, did she identify herself?
A. Well, at that point, I identified myself as Detective Benefield, Fulton
County Police, and asked for her name.
Q. What did she say?
A. The name that was given to us the first time was, I believe, Nadine
Simmons.
errorless counsel or by hindsight.” (punctuation omitted)).
25
Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).
21
Q. And after she identified herself as Nadine Simmons, what did you all
do?
A. It’s a common practice to try to establish the identity of the person.
I asked if she had any ID. She stated no. Asked for a date of birth.
Q. Did she give a date of birth?
A. Yes, sir. Eventually. The first couple of times when we asked the
question, the question was repeated back to us. What’s your name?
What’s my name? What’s your name? It was repeated. What’s your date
of birth? What’s my date of birth? It’s a common tactic we’ve seen
before. We finally got the date of birth. Once we got the name of Nadine
Simmons and the date of birth that was given to us, we had our
communications system run that name through the Georgia system, see
if it came back to a valid person.
Q. When you said earlier that it was common for you to have someone
repeat your question back to you, when this person was repeating the
question back to you, did you get the impression that they didn’t
understand the question?
A. No, sir.
Q. What was your impression?
22
A. My experience as a law enforcement officer is usually when people
are trying to think about something in the meantime, whether –
sometimes it’s an indicator that they’re not being totally truthful. It’s a
stall tactic while they’re trying to think up stuff as they go along. That’s
been my experience.
Q. Okay. And after you ran the name and the date of birth that was
provided to you and you found that there was no person with that name
and date of birth in the data system, what did y’all do then?26
A. Advised her I needed to get some sort of ID. We then entered the
room to make sure there were not additional people in that room,
conducted a safety sweep.
Roberts’s trial counsel lodged no objection to this testimony, but did conduct a
lengthy cross-examination of the detective.
Roberts argues that the last question in the aforementioned exchange was
leading, essentially allowed the State’s prosecutor to testify, and that her trial
counsel’s failure to object constituted ineffective assistance. And during the hearing
on Roberts’s motion for new trial, her former trial counsel testified that perhaps he
should have objected to the question. But counsel further testified that after reading
26
(Emphasis supplied.)
23
the entire colloquy, the State’s prosecutor’s earlier questions had already elicited the
information she was seeking from the detective, which was essentially that Roberts
initially provided police officers with a false identity, and therefore, he did not want
to draw further attention to it by objecting.
It is well established that as a general rule, “matters of reasonable trial strategy
and tactics do not amount to ineffective assistance of counsel.”27 Specifically, an
attorney’s decision to “forego objecting to hearsay or to leading questions used to
establish routine points constitutes reasonable trial strategy.”28 And here, counsel’s
supposition that he may not have objected to the question in order to avoid drawing
further attention to the issue is certainly reasonable trial strategy, which we are not
at liberty to second-guess.29 But even if trial counsel should have objected to the
27
Will. v. State, 282 Ga. 561, 564 (5) (a) (651 SE2d 674) (2007)
(punctuation omitted); accord Ray v. State, 338 Ga. App. 822, 832 (5) (a) (792 SE2d
421) (2016).
28
Williams, 282 Ga. at 564 (5) (a); accord Ray, 338 Ga.App. at 832 (5) (a).
29
See Butler v. State, 292 Ga. 400, 409 (3) (d) (738 SE2d 74) (2013) (holding
that defendant did not meet burden to rebut presumption that trial counsel’s failure
to object to leading questions was not sound trial strategy); Kay v. State, 306 Ga.App.
666, 671-72 (5) (c) (703 SE2d 108) (2010) (holding that tactical decision not to
object to statement in order to avoid drawing jury’s attention to it did not amount to
ineffective assistance of counsel); Ballard v. State, 268 Ga. App. 55, 60 (5) (c) (601
SE2d 434) (2004) (holding that trial counsel’s speculation that at times he would not
24
question at issue, which rather than leading is more accurately characterized as an
assumption of facts not in evidence, Roberts has not demonstrated how such failure
prejudiced her case to the extent that a reasonable probability exists that but for this
improper question, the outcome of the trial would have been different.30 Indeed, as
trial counsel noted in his testimony, the exchange between the State’s prosecutor and
the detective prior to the objectionable question had already established that the
detective did not believe that Roberts was being truthful when she first provided a
false name. Accordingly, the trial court did not err in denying Roberts’s claim of
ineffective assistance in this regard.
object to improper testimony in order to avoid calling the jury’s attention to it was
reasonable trial strategy).
30
See Butler, 292 Ga. at 409 (3) (d) (noting that defendant failed to show that
he was prejudiced by his counsel not objecting to leading questions); Williams v.
State, 271 Ga. App. 166, 168 (5) (a) (609 SE2d 122) (2004) (holding that defendant
did not show that trial counsel’s failure to object to leading questions prejudiced his
case when witness had already testified to some of the facts elicited by the leading
questions); Reynolds v. State, 269 Ga. App. 268, 271 (2) (603 SE2d 779) (2004)
(holding that trial counsel’s failure to object to numerous leading questions did not
prejudice defendant’s trial); see also Mangrum v. State, 291 Ga. 529, 530 (731 SE2d
761) (2012) (noting that “a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies” (punctuation omitted)).
25
(b) Failure to present an adequate defense. Roberts also argues that her trial
counsel rendered ineffective assistance by failing to present any evidence or call any
witnesses. But this argument lacks merit. In fact, on appeal, Roberts references no
specific witnesses who should have been called or evidence that should have been
presented and does not even argue how trial counsel’s alleged failure to call these
unnamed witnesses and present this unidentified evidence affected the outcome of her
trial. And merely alleging that counsel provided ineffective assistance, without more,
is “insufficient to establish a claim of ineffective assistance of counsel.”31 Thus, the
trial court, likewise, did not err in denying Roberts’s claim of ineffective assistance
in this regard.
For all these reasons, we affirm Roberts’s convictions and the denial of her
motion for new trial.
Judgment affirmed. Ray and Self, JJ., concur.
31
Howard v. State, 340 Ga. App. 133, 139 (3) (a) (796 SE2d 757) (2017)
(punctuation omitted); see Brewer v. State, 280 Ga. 18, 20-21 (3) (622 SE2d 348)
(2005) (holding that defendant’s mere allegations of ineffective assistance were
insufficient to prevail on such a claim).
26