Ward v. the State , 339 Ga. App. 621 ( 2016 )

THIRD DIVISION
MILLER, P. J.,
MCFADDEN 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 18, 2016
In the Court of Appeals of Georgia
A16A1339. WARD v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Lavalis Ward was convicted of criminal attempt to commit
armed robbery, two counts of burglary, possession of a firearm during the
commission of a crime, possession of a tool for commission of a crime, possession
of a controlled substance, and possession of a firearm by a convicted felon. Ward
appeals, claiming that his trial counsel was ineffective; however, Ward has failed to
show that his counsel’s performance was both deficient and prejudicial. Ward also
challenges the trial court’s admission of certain evidence, but he has not shown that
the court abused its discretion in its evidentiary rulings. Finally, Ward contends that
the attempted armed robbery and burglary offenses should have been merged for
purposes of sentencing. We agree that the two burglary counts, which were based on
a single illegal entry into a building, should have been merged; but the attempted
armed robbery and burglary offenses were not based on the same conduct and thus
properly were not merged for sentencing. Accordingly, we affirm in part, vacate in
part, and remand for resentencing on the burglary counts.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to support the jury’s verdict, and the defendant no longer enjoys a
presumption of innocence.” Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016)
(citation omitted). So viewed, the evidence shows that on June 19, 2011, at
approximately 2:30 in the morning, Ward and an accomplice went to the victim’s
apartment to steal money that they had learned was supposedly hidden under a
mattress. Ward forced his way into the apartment with a handgun while his
accomplice waited outside. As Ward ransacked the apartment looking for the money,
he threatened and hit the victim with the gun. After failing to find the money, Ward
and his accomplice fled. The state also introduced evidence of Ward’s prior
convictions arising from a similar home invasion.
1. Tape recording.
Ward contends that the trial court erred in allowing the state to play a tape
recording because it contained statements from a detective that invaded the jury’s
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province by addressing an ultimate issue of fact. However, as Ward notes in his brief,
this objection to the tape recording was not raised at trial; rather, his attorney raised
only a Miranda objection to the tape. Because no ultimate issue objection to the
evidence was raised at trial, Ward “may not now raise it for the first time on appeal.
Where an entirely different objection or basis for appeal is argued in the brief which
was not presented at trial we will not consider that basis as we are limited to those
grounds presented to and ruled upon by the trial court.” Holmes v. State, 271 Ga.
App. 122, 123 (1) (608 SE2d 726) (2004) (citation and punctuation omitted). See also
Batten v. State, 295 Ga. 442, 444 (2) (761 SE2d 70) (2014) (ultimate issue objection
to investigator’s testimony was not preserved for appellate review).
2. Song lyrics.
Ward contends that the trial court erred by allowing admission of redacted
lyrics of a rap song he had written, arguing that the lyrics were irrelevant and unduly
prejudicial. “The exclusion of evidence that is objected to on the ground of relevancy
lies within the sound discretion of the trial court, whose decision will not be disturbed
on appeal absent a clear abuse of discretion.” Taylor v. State, 297 Ga. 132, 135 (3)
(772 SE2d 630) (2015) (citation and punctuation omitted). Both this court and our
Supreme Court have held that a trial court does not abuse its discretion in admitting
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evidence of a defendant’s written lyrics when the evidence is relevant to some issue
in the case. See Taylor, supra (no error in admitting rap lyrics referencing a particular
type of gun); Castillo v. State, 281 Ga. 579 (7) (a) (642 SE2d 8) (2007) (no error in
admitting song lyrics suggesting defendant might be inclined to violence); Thomas
v. State, 270 Ga. App. 181, 183 (2) (606 SE2d 275) (2004) (no error in admitting
song lyrics suggesting that defendant might be inclined to engage in violent encounter
with police). Here, the state contended, and presented evidence showing, that Ward
had attempted to intimidate various witnesses from testifying against him in this case.
The rap lyrics in question referenced violence toward witnesses and thus were
relevant to the issue of witness intimidation. Accordingly, “[t]he trial court did not
abuse its discretion by admitting this relevant evidence.” Taylor, supra (citation
omitted).
3. Drug paraphernalia.
Ward claims that the trial court erred in allowing the state to introduce
evidence of drug manufacturing paraphernalia found during a search of his home
because it impermissibly placed his character in issue. But even if we assume, without
deciding, that the court erred in allowing the evidence, “the error [was] harmless
because . . . the evidence of [Ward’s] guilt[, including the victim’s eyewitness
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identification of Ward, the accomplice’s incriminating testimony, and the similar
transaction,] was overwhelming and it is therefore highly probable that the admission
of the challenged [evidence] did not contribute to the verdict. [Cit.]” Johnson v. State,
292 Ga. 785, 789 (4) (741 SE2d 627) (2013) (any error in allowing evidence of
defendant’s involvement in a drug transaction for which he was not on trial was
harmless due to overwhelming evidence of guilt). Accord Ingram v. State, 232 Ga.
App. 802, 804 (503 SE2d 70) (1998) (any error in admitting evidence of defendant’s
commission of independent crime was “harmless given the overwhelming evidence
of [his] guilt.”).
4. Ineffective assistance of counsel.
To prevail on his claim of ineffective assistance of counsel, Ward
must show [both] that trial counsel’s performance [was deficient in that
it] fell below a reasonable standard of conduct and that [it was
prejudicial because] there existed a reasonable probability that the
outcome of the case would have been different had it not been for
counsel’s deficient performance. If [Ward] fails to [prove] either prong
of the [two-part] test, this relieves the reviewing court of the need to
address the other prong.
Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation
omitted). Ward has failed to show that his trial counsel’s performance was both
deficient and prejudicial.
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a. Motion for directed verdict of acquittal.
Ward complains that his trial counsel was ineffective in moving for a directed
verdict of acquittal on the armed robbery count, theorizing that the motion prompted
the state to request a jury charge on attempted armed robbery as a lesser offense. At
the motion for new trial hearing, counsel testified that his reason for the motion for
a directed verdict of acquittal was the lack of evidence showing that anything was
taken from the victim. When asked about the state’s ability to request attempted
armed robbery as a lesser included offense, counsel responded, “Well, I guess they
were free to assert any theory they had that was supported by the evidence.”
Generally, decisions on whether to raise, and how to argue, motions are matters
of trial strategy. Taylor v. State, 337 Ga. App. 486, 492 (4) (a) (788 SE2d 97) (2016);
Minor v. State, 328 Ga. App. 128, 142 (8) (b) (761 SE2d 538) (2014). “As a general
rule, matters of reasonable tactics and strategy, whether wise or unwise, do not
amount to ineffective assistance of counsel.” Smith v. State, 335 Ga. App. 742, 746
(3) (782 SE2d 824) (2016) (citation and punctuation omitted). Moreover
Effectiveness is not judged by hindsight or by the result. Although
another lawyer may have conducted the defense in a different manner
and taken another course of action, the fact that defendant and his
present counsel disagree with the decisions made by trial counsel does
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not require a finding that defendant’s original representation was
inadequate.
Powell v. State, 198 Ga. App. 509, 511-512 (1) (402 SE2d 108) (1991) (citations and
punctuation omitted).
Here, trial counsel’s decision to move for a directed verdict of acquittal due to
insufficient evidence was certainly a reasonable strategy, especially since the jury did
not find Ward guilty of the very offense that was the subject of that motion. The mere
“fact that [Ward] now finds fault with trial counsel’s strategy does not require a
finding that he received deficient representation. [Cit.] Given [Ward’s] failure to
demonstrate error by the trial court, we will not disturb its denial of [his] motion for
new trial based on ineffective assistance of counsel. [Cit.]” Zapata v. State, 291 Ga.
App. 485 (662 SE2d 271) (2008) (rejecting claim that trial counsel was ineffective
in moving for a directed verdict of acquittal because such motion allowed the state
to reopen the evidence). See also Hicks v. State, 337 Ga. App. 567, 571 (4) (788 SE2d
502) (2016) (finding that counsel’s strategic decision to move for a directed verdict
did not amount to ineffective assistance).
b. Bulletin.
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Ward contends that his trial counsel was ineffective in failing to raise an
improper character evidence objection to a police officer’s testimony that there was
a bulletin with Ward’s information on it in the police station. However, even if such
a character objection would have been appropriate, Ward “has not met his burden of
showing prejudice. The overwhelming evidence of his guilt forecloses the reasonable
probability that the trial result would have been different if trial counsel had objected
to the testimony.” Andemical v. State, 336 Ga. App. 661, 667 (4) (a) (786 SE2d 238)
(2016) (citation omitted).
c. Similar transaction testimony.
Ward claims his trial counsel was ineffective in failing to object to hearsay
during a detective’s testimony about the similar transaction. However, in addition to
the detective’s testimony, the state also introduced a certified copy of his convictions
arising from the prior incident and the testimony of his accomplice in that incident.
And as noted above, the evidence of Ward’s guilt in the instant case was
overwhelming. Consequently, “[p]retermitting whether trial counsel’s performance
was deficient for failing to object on hearsay grounds to the detective’s testimony at
trial, [Ward] has failed to establish a reasonable probability that, but for counsel’s
[lack of an] objection to the testimony in question, the result of the proceeding would
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have been different.” Jones v. State, 329 Ga. App. 478, 483 (4) (765 SE2d 657)
(2014) (citations omitted).
d. Third-party and co-indictee statements.
Ward claims that his trial counsel was ineffective in failing to object to
statements made by third-parties in a recorded telephone call and to statements of a
co-indictee who disappeared before trial. But Ward “does not point to any specific
[statements by third-parties or the co-indictee] to which his trial counsel should have
objected[.]” Gipson v. State, 332 Ga. App. 309, 322 (8) (d) (772 SE2d 402) (2015).
Accordingly, these claims provide no basis for finding ineffective assistance of
counsel. See Stokes v. State, 281 Ga. 825, 834 (8) (e) (642 SE2d 82) (2007) (no
ineffective assistance shown where appellant failed to cite specific deficiencies);
Conway v. State, 281 Ga. 685, 690 (3) (642 SE2d 673) (2007) (no ineffective
assistance where appellant failed to show specific instances of counsel’s alleged
failure to prepare for trial); Bennett v. State, 289 Ga. App. 110, 114 (3) (657 SE2d 6)
(2008) (appellant failed to identify witness whom he claimed counsel should have
called at trial).
e. Detective’s recorded statements.
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Ward argues that his trial counsel was ineffective in failing to raise relevance
and ultimate issue objections to statements made by a detective on a recording which
indicated the detective’s belief that his investigation pointed to Ward’s guilt. But
even assuming such objections would have been appropriate, “given the
overwhelming evidence of guilt, we cannot say [these brief statements] in reasonable
probability changed the outcome of the trial; accordingly, [Ward] suffered no
prejudice from trial counsel’s failure to object to this [evidence].” Crankshaw v. State,
336 Ga. App. 700, 703 (3) (d) (786 SE2d 245) (2016) (citation and punctuation
omitted).
5. Merger.
Ward argues that the trial court should have merged the attempted armed
robbery and the two burglary offenses for sentencing because all three counts were
based on the same conduct. We agree that the two counts of burglary should have
been merged for sentencing; however, the trial court correctly ruled that the attempted
armed robbery count did not merge with either of the burglary offenses.
a. Burglary counts.
The two counts of burglary upon which the jury found Ward to be guilty were
based on the same unlawful entry into the victim’s house, but one count was
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predicated on the intent to commit a theft and the other was predicated on the intent
to commit an aggravated assault. The trial court imposed separate sentences for each
burglary count. However, “[w]here one course of conduct violates one criminal
statute in several ways described in the statute, a defendant is guilty of only one
crime. [Cits.]” Spears v. State, 296 Ga. 598, 601-602 (2) (769 SE2d 337) (2015).
Since Ward’s one entry into the victim’s house was committed with a dual intent to
commit theft and aggravated assault, the trial court should not have imposed two
separate sentences and instead should have merged the burglary counts for
sentencing. See Andrews v. State, 328 Ga. App. 344, 348 (2) (a) (764 SE2d 553)
(2014) (finding two burglary counts should have merged because only one burglary
occurred where defendant entered building with dual intent of committing theft and
rape). Compare Spears, supra (two separate entries authorized separate sentences for
two burglary counts). We therefore vacate the erroneous burglary sentences and direct
the trial court, on remand, to merge the two burglary counts for sentencing. See
Andrews, supra.
b. Attempted armed robbery.
Contrary to Ward’s argument, the trial court did not err in failing to merge the
attempted armed robbery with the burglary counts for sentencing.
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While an accused may be prosecuted for more than one crime
arising out of the same criminal conduct, he may not be convicted of
more than one crime arising out of the same criminal conduct where one
crime is included in the other. OCGA § 16-1-7 (a) (1). A crime is
included in the other when: (1) It is established by proof of the same or
less than all the facts or a less culpable mental state than is required to
establish the commission of the crime charged; or (2) It differs from the
crime charged only in the respect that a less serious injury or risk of
injury to the same person, property, or public interest or a lesser kind of
culpability suffices to establish its commission. OCGA § 16-1-6. With
respect to subsection (1), the “required evidence test” is utilized to
determine whether multiple convictions are precluded because one of
the crimes was established by proof of the same or less than all the facts
that were required to establish the other crime. . . . [T]hat [required
evidence] test is exclusive to a merger analysis under OCGA § 16-1-6
(1); however, there are other circumstances in which a merger analysis
will not end with the required evidence test.
Regent v. State, 299 Ga. 172, 175 (787 SE2d 217) (2016) (citations, punctuation and
emphasis omitted).
In the instant case, the attempted armed robbery and burglary offenses were not
established by proof of the same facts and thus were not included offenses.
Under Georgia law, a person commits the offense of burglary when,
without authority and with the intent to commit a felony or theft therein,
he enters or remains within the dwelling house of another. A person
commits the offense of criminal attempt when, with intent to commit a
specific crime, he performs any act which constitutes a substantial step
toward the commission of that crime. A person commits the offense of
armed robbery when, with intent to commit theft, he or she takes
property of another from the person or the immediate presence of
another by use of an offensive weapon, or any replica, article, or device
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having the appearance of such weapon. Thus, the elements of burglary
and attempted armed robbery and the culpable mental states required of
these crimes are different.
Culbreath v. State, 328 Ga. App. 153, 156-157 (2) (a) (761 SE2d 557) (2014)
(citations omitted). Because the burglary and attempted armed robbery offenses in
this case “require[d] proof of at least one fact different from the others[,] these crimes
did not merge.” Id. at 157 (2) (a). See also Crankshaw, supra at 704 (4).
Moreover, Ward has not shown and we do not find any further circumstances
under which the attempted armed robbery and burglary offenses in this case should
have merged. Compare Regent, supra at 175-176 (finding that the charged aggravated
assault and aggravated battery offenses should have merged because they differed
only in the seriousness of the injury to the victim). Thus, even though the trial court
should have merged the burglary counts, as discussed above, the trial court did not
err in refusing to merge the attempted armed robbery with the burglary counts for
sentencing.
Judgment affirmed in part and vacated in part, and case remanded with
direction. Miller, P. J. concurs. McMillian, J., concurs in the judgment only.
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