Payne v. the State , 329 Ga. App. 625 ( 2014 )

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, 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/
November 14, 2014
In the Court of Appeals of Georgia
A14A0763. PAYNE v. THE STATE.
PHIPPS, Chief Judge.
After a jury trial, Michael Payne was convicted of robbery by force1 (Count 1),
robbery (by intimidation)2 (Count 2), and two counts of simple battery (Counts 3 and
4). He appeals, contending that: (1) the evidence was insufficient to support the
conviction for robbery by intimidation; (2) even if the evidence was sufficient to
support the robbery by intimidation conviction, the conviction is invalid because that
offense should have merged with the robbery by force offense for sentencing
purposes; and (3) his trial counsel provided ineffective assistance. We affirm the
judgment in part, vacate the judgment in part, and remand the case for re-sentencing.
1
OCGA § 16-8-40 (a) (1).
2
OCGA § 16-8-40 (a) (2).
The evidence showed that Payne proposed to James Knight and other
individuals an idea to rob Payne’s former employer, G. S., as she left work at a
restaurant on July 22, 2007. Payne drove himself, Knight, and another individual to
the restaurant. As Payne had predicted, G. S. exited the restaurant with another person
around 5:00 p.m., carrying a bag of money underneath her arm. Knight approached
G. S. and the other person (a woman), as G. S. was at her vehicle and the other
woman was walking toward her vehicle. Knight sprayed both women with pepper
spray, grabbed the money bag from G. S., and fled to Payne’s vehicle. Payne drove
away from the scene. The money bag contained cash, which was later divided among
the three perpetrators, including Payne.
Payne was indicted for, inter alia, robbery by force (Count 1) in that he did “on
July 22, 2007, . . . with intent to commit theft, take property of another, to wit: a bag
containing United States currency, the property of [G. S.], from the immediate
presence of [G. S.] by force”; and robbery (Count 2) in that he did “on July 22, 2007
. . . with intent to commit theft, . . . take property of another, to wit: a bag containing
United States currency, from the person and immediate present of [G. S.] by use of
intimidation, use of threat, and by placing such person in fear of immediate serious
bodily injury to herself.” On March 22, 2011, the trial court sentenced Payne to
2
imprisonment for 20 years, to serve 10 years in confinement and the balance on
probation, on Count 1, and to imprisonment for 20 years, to serve 10 years in
confinement and the balance on probation, on Count 2.
1. We first address Payne’s challenge to the sufficiency of the evidence to
support the robbery by intimidation conviction, and Payne’s contention that “[e]ven
if the State established the essential elements of robbery by intimidation beyond a
reasonable doubt, [his] sentence as to count 2 [robbery by intimidation] is invalid and
therefore must be vacated because it should have merged with count 1 [robbery by
force] for sentencing as a matter of fact because there was only one act of robbery
against one victim.”
The state concedes, and we agree, that the trial court should have merged the
robbery offenses for sentencing purposes, and that the case should be remanded for
re-sentencing.3 Payne does not challenge the sufficiency of the evidence to sustain the
3
See e. g. Poole v. State, 291 Ga. 848, 859 (9) (734 SE2d 1) (2012) (“felony
murder conviction was vacated by operation of law because, where there is only one
murder victim, convicting and sentencing a defendant for both malice murder and
felony murder of that victim improperly subjects the defendant to multiple
convictions and punishments for one crime”) (citation omitted); Andrews v. State, 328
Ga. App. 344, 348 (2) (a) (_SE2d _) (2014) (case remanded for re-sentencing where
appellant’s burglary convictions should have merged because only one burglary
occurred and the trial court failed to merge two separate burglary counts regarding
the same incident for sentencing purposes). See generally Hewitt v. State, 277 Ga.
3
robbery by force conviction, and the evidence adduced was, in fact, sufficient to
prove beyond a reasonable doubt that he committed robbery by force.4 Accordingly,
we vacate the sentences entered on both robbery counts and remand the case to the
trial court to merge the robbery by intimidation count into the robbery by force count
and to resentence Payne for robbery by force.5 Because, on remand, there will be no
327, 329 (1) (b) (588 SE2d 722) (2003) (“A taking accomplished by force or
intimidation is the ‘distinguishing characteristic’ of robbery - the ‘gist’ of the offense.
The force necessary for robbery is actual violence or intimidation exerted upon the
person robbed, by operating upon his fears - the fear of injury to his person, or
property, or character. Intimidation is that terror … likely to create an apprehension
of danger, and induce a person to part with his property for the safety of his person.
Intimidation is [also] that act by the perpetrator which puts the person robbed in fear
sufficient to suspend the free exercise of his will or prevent resistance to the taking.”)
(citation and punctuation omitted); Richards v. State, 276 Ga. App. 384, 385-386
(623 SE2d 222) (2005) (“Robbery by intimidation, unlike . . . robbery by force, . . .
may be accomplished without a weapon or an overt act of physical force.”); Setzer v.
State, 76 Ga. App. 509, 511 (1) (46 SE2d 603) (1948) (“robbery by force and
violence on the one hand, and by intimidation on the other hand, are not separate
offenses, but are different grades of the same offense”); compare State v. Dixon, 194
Ga. App. 146 (1) (390 SE2d 600) (1990) (trial court erred in merging several armed
robbery convictions for sentencing purposes on the theory that they had stemmed
from the same incident, where each count had involved a different victim).
4
See Brown v. State, 233 Ga. App. 195-196 (1) (504 SE2d 35) (1998).
5
See generally Andrews, supra; Mack v. State, 283 Ga. App. 172, 176 (3) (641
SE2d 194) (2007).
4
sentence entered for robbery by intimidation and thus, no conviction for that offense,6
we need not address Payne’s challenge to the sufficiency of the evidence as to that
count.7
2. Payne contends that his trial attorney provided ineffective assistance when
he failed to: (a) impeach two witnesses; and (b) object when a witness testified that
she had suspected that Payne was involved in the robbery. These contentions present
no basis for reversal.
Pursuant to Strickland v. Washington,8 in order to prevail on [a claim of
ineffective assistance of trial counsel], the defendant must show both
that counsel’s performance was deficient, and that the deficient
performance was prejudicial to his defense. To meet the first prong of
the required test, the defendant must overcome the strong presumption
6
See Stinson v. State, 318 Ga. App. 351, n. 1 (733 SE2d 390) (2012), citing
Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011) (ruling that a conviction
does not occur until a final judgment of conviction is entered upon a guilty verdict),
and Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999) (a defendant is not
convicted of a merged offense).
7
See generally Smith v. State, 258 Ga. 676, 679 (11) (373 SE2d 200) (1988);
Travis v. State, 314 Ga. App. 280, 281, 288-289 (1), (7), n. 1 (724 SE2d 15) (2012);
Merritt v. State, 288 Ga. App. 89, 90-91 (1) (653 SE2d 368) (2007); Moore v. State,
250 Ga. App. 75, 76, 78-79 (1), (3) (550 SE2d 667) (2001); Wilkins v. State, 246 Ga.
App. 667, 670 (6) (541 SE2d 458) (2000); Dixon v. State, 227 Ga. App. 533, 535 (3)
(489 SE2d 532) (1997).
8
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984) (footnote omitted).
5
that counsel’s performance fell within a wide range of reasonable
professional conduct, and that counsel’s decisions were made in the
exercise of reasonable professional judgment. The reasonableness of
counsel’s conduct is examined from counsel’s perspective at the time of
trial and under the particular circumstances of the case. To meet the
second prong of the test, the defendant must show that there is a
reasonable probability that, absent any unprofessional errors on
counsel’s part, the result of his trial would have been different.9
(a) Jeff Whitley, a man whom Knight considered his uncle, testified that after
he became aware that Payne had been arrested for this incident, he contacted police
and arranged for police to meet with him and Knight so that Knight could confess and
get a better deal than Payne for his involvement in the robbery. Whitley testified:
“[Knight] is kind of slow, and I felt that they had used [him] to [commit the robbery]
. . . and if anything happened, [Knight] would be the one [to take] the fall.” At trial,
when the investigator who later met with Knight and Whitley was asked, “Now when
you spoke with Mr. Whitley, was he inquiring from you about a reward?” she replied,
“No. In fact, I was the one who mentioned a reward to him.” Payne contends that the
foregoing testimony made it appear as though Whitley’s motive in contacting the
9
Price v. State, 325 Ga. App. 564, 567 (2) (754 SE2d 144) (2014) (punctuation
and footnote omitted).
6
police was to “look out for” Knight, as Whitley had so testified, but that other
information, that trial counsel had been provided in discovery but failed to put before
the jury, showed that Whitley’s motive for contacting police was to obtain reward
money.
Payne asserts that a police report written by the investigator reflected that when
Whitley had initially called police, he had inquired about whether there was a reward
for information about the robbery, and that when the investigator returned Whitley’s
call, Whitley was “hesitant to meet and give a statement until [the investigator] told
him the restaurant owner was interested in giving a reward.” Payne contends that trial
counsel should have impeached Whitley and the investigator with the investigator’s
report.
At the hearing on Payne’s motion for new trial, trial counsel testified that he
did not “read any more [in]to it than the fact that [Whitley] wanted to know if there
was a reward and [the investigator] was willing to tell him whether there was or was
not.” Indeed, the evidence at trial reflected, as trial counsel put it, that “there was a
communication by both [the investigator] and Whitley regarding a reward.” Whitley
testified that when he had initially contacted police, he did not know that a reward
was being offered for information about the robbery, but that he later found out that
7
a reward was available. And the investigator testified that she had told Whitley that
a reward was available. Moreover, on cross-examination of Whitley, trial counsel
brought out the fact that G. S. had given Whitley a $500 reward after Whitley had
talked to police and after the investigator had interviewed Knight, and that it was at
Whitley’s urging that Knight had met with the investigator.
“The fact that appellate counsel would have pursued the defense in [a] different
way[ ] or would have chosen to . . . cross-examine [witnesses] in a different way does
not render trial counsel ineffective.”10 Even assuming the police report showed that
Whitley was motivated to tell police what he knew about the robbery, in part, because
of the hope of a reward,11 evidence that Whitley had asked whether a reward was
available is no more indicative of the alleged motivation to talk to police than was the
evidence presented at trial that Whitley knew that a reward was available and, in fact,
received the reward.12
10
Smith v. State, 283 Ga. 237, 239 (2) (b) (657 SE2d 523) (2008).
11
As the investigator did not testify at the hearing on the motion for new trial,
Payne’s contention is based on his own interpretation of the investigator’s report.
12
See, e. g. Hollie v. State, 298 Ga. App. 1, 3-4 (1) (679 SE2d 47) (2009);
Orkin v. State, 140 Ga. App. 651-652 (1) (a) (231 SE2d 481) (1976).
8
While other counsel, had they represented appellant, may have exercised
different judgment, the fact that trial counsel chose to try the case in the
manner in which it was tried, and made certain difficult decisions
regarding the defense tactics to be employed with which appellant and
his present counsel now disagree, does not require a finding that the
representation below was so inadequate as to amount to a denial of
effective assistance of counsel.13
The evidence supports the trial court’s conclusion that this claim is without merit.
“[T]he jury had an issue of credibility and was in position to decide whether
[Whitley’s] testimony was true or perjured.”14 “[The jury] resolved the issue against
the appellant.”15
(b) At trial, G. S. testified that she had forced her eyes open during the attack,
and that her attacker was not anyone who had ever worked at her restaurant. She also
testified, however, that she had suspected that Payne was involved in the attack.
Payne complains of his trial attorney’s failure to object to G. S.’s testimony that she
13
Smith, supra at 239-240 (2) (b) (citations and punctuation omitted).
14
Maxey v. State, 159 Ga. App. 503, 507 (3) (284 SE2d 23) (1981) (citation
and punctuation omitted).
15
Morris v. State, 228 Ga. 39, 48 (10) (184 SE2d 82) (1971).
9
suspected that he was involved in the robbery. Relying upon Evans v. State,16 Payne
asserts that G. S.’s testimony “amounted to nothing more than opinion testimony
based on speculation. Thus, it was error to admit this testimony, and counsel provided
ineffective assistance when he failed to object.”
At trial, when G. S. was asked on direct examination “why is it that you
suspected that Mr. Payne was involved,” G. S. replied that it was because “he didn’t
show up for work that day and he was constantly asking me about a [large diamond]
necklace” that she wore. On cross-examination, however, trial counsel elicited
testimony from G. S. that the necklace was not taken from her during the robbery.
Thus, the record showed that although counsel did not object to the allegedly
impermissible testimony, he instead attempted to show during cross-examination that
G. S.’s testimony was based on pure speculation. “This apparent trial strategy, that
is, avoiding an objection that would draw the jury’s attention to the statement, and
16
275 Ga. 541 (2) (570 SE2d 331) (2002) (“As a general rule answers
constituting mere conclusions, surmise or conjecture should be excluded from
evidence.”) (citation and punctuation omitted).
10
instead challenging the testimony through cross-examination cannot be found to be
outside the wide range of reasonable professional assistance.” 17
Judgment affirmed in part and vacated in part, and case remanded. Ellington,
P. J., and McMillian, J., concur.
17
Sweet v. State, 278 Ga. 320, 324 (5) (602 SE2d 603) (2004) (citation
omitted); see Braithwaite v. State, 275 Ga. 884, 887 (4) (572 SE2d 612) (2002) Alexis
v. State, 313 Ga. App. 283, 288 (3) (a) (721 SE2d 205) (2011); Al-Attawy v. State,
289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008).
11