Pryor v. the State ( 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/
May 19, 2015
In the Court of Appeals of Georgia
A15A0764. PRYOR v. THE STATE.
BARNES, Presiding Judge.
A jury convicted James Pryor of attempted armed robbery and possession of
a firearm during the commission of a crime, and the trial court denied his motion for
new trial. On appeal, he argues that he was denied his constitutional right to counsel
because his trial counsel had an actual conflict of interest and that his counsel was
ineffective for failing to object to certain testimony and evidence. For the reasons that
follow, we affirm.
1. “On appeal from a criminal conviction, we view the evidence in the light
most favorable to the verdict, with the defendant no longer enjoying a presumption
of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d
165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether, after viewing the evidence in the light most favorable to the
prosecution, a “rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SC 2781, 61 LE2d 560) (1979).
So viewed, the evidence shows that as three men were preparing to leave the
parking lot of a club that had just closed at 4:00 am, Pryor, Derrick Brown, and
Reginald Frails approached their car, with Pryor “leading the pack.” The first victim
was already in the back seat and the other two victims were standing on the driver’s
side of the car. Pryor pulled out a handgun and asked the second victim to empty his
pockets, and after the second victim protested that he had nothing, Pryor stuck his
head into the car through the open driver’s door and told the first victim inside to
empty his pockets. Pryor pointed his gun at the first victim inside the car, but when
Pryor turned to look at Brown and Frails pushing up against the third victim outside
the car, the first victim picked up his .48 caliber semi-automatic handgun from the
floorboard and began firing at Pryor. Pryor dropped his weapon, a .38 caliber
revolver, at the feet of the second victim, who picked it up and began firing at all
three robbers, all of whom were running away when they were hit by either the .38
or the .48 caliber gun. An off-duty deputy sheriff working security at the club arrived
on the scene almost immediately, cuffed the victims, and placed them in separate
patrol cars.
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Emergency medical technicians were called to the scene and Pryor, Frails, and
Brown were taken to the hospital and the three victims were taken to the station. The
lead investigator went to the hospital and talked to Brown, who had been shot in the
knee and whose responses to questions were “elusive” and unclear. Frails, who had
been shot in the buttocks, refused to talk to the investigator and left the hospital
against medical advice while the investigator went to see if he could talk to Pryor.
Pryor had been sedated, was unable to respond to the investigator, and appeared to
have been shot in his neck or the top of his chest.
The investigator then interviewed the three victims at the station. He described
them as “calm and collected” and “very precise.” The first victim, who had been
seated in the car, had a valid carry permit for the semi-automatic .48 caliber handgun
he shot at Pryor. The victims’ virtually identical statements coupled with evidence
from the scene led the police to re-categorize the three men at the station from
suspects to victims. Frails, who had been clutching two plastic bags containing 22
grams of cocaine when he arrived at the emergency room, was subsequently arrested
at his last known address for possession with intent to distribute. Frails subsequently
pled guilty to criminal attempt to commit armed robbery and possession of cocaine
with intent to distribute.
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None of the victims could identify Frails or Brown from a photographic line-
up. The victims were not presented with a line-up containing Pryor’s photograph
because the investigator did not have one available, but two of them identified Pryor
at trial as the man with the handgun who attempted to rob them. Frails testified at trial
that he did not remember much from that night because he was very drunk but did
remember that Pryor had a .38 revolver. Frails also admitted having said at his plea
hearing and sentencing that he had walked to the victims’ car with Pryor, that Pryor
pulled his gun, that Frails and Pryor both told the victims to empty their pockets, that
Pryor had leaned into the car, that shots were fired and that the three defendants ran
away.
Although Pryor does not challenge the sufficiency of the evidence, we find that
the evidence as summarized above was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that he was guilty of the crimes of which he was
convicted. Jackson, 443 U. S. at 319 (III) (B).
2. Pryor argues that his trial attorney had an actual conflict of interest that
denied him his constitutional right to counsel because his attorney worked in the same
circuit public defender’s office as the attorney who represented Frails. Pryor further
asserts that “[p]rejudice is presumed from ... [this] conflict” and that he is therefore
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entitled to a new trial. We disagree that prejudice is presumed from this situation, and
find no error in the trial court’s conclusion that Pryor “sweeps too broadly in his
statement that there is a per se or automatic rule of disqualification by a public
defender’s office representing multiple defendants.”
In July 2013, the Georgia Supreme Court held that the standard for the
imputation of conflicts of interest under Georgia Rule of Professional Conduct 1.10
(a) applies to the office of a circuit public defender the same way it does to a private
law firm. In re Formal Advisory Opinion 10-1, 293 Ga. 397 (744 SE2d 798) (2013).
Specifically, the court held that if “a single public defender in the circuit public
defender’s office of a particular judicial circuit has an impermissible conflict of
interest concerning the representation of co-defendants, then that conflict of interest
is imputed to all of the public defenders working in the circuit public defender office
of that particular judicial circuit.” Id. at 399 (1). The Supreme Court also expressly
did not determine whether the representation of co-defendants by different lawyers
employed by the same circuit public defender office was absolutely prohibited, but
limited its approval of the Bar’s Proposed Rule only as to the question of conflict
imputation. Id. at 398, n. 1. The court further observed that, while it had cited
precedent addressing the constitutional guarantee of the assistance of counsel, it did
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not hold that the imputation of conflicts was compelled by the Constitution, only that
Rule 1.10 was “a useful aid in the fulfillment of the constitutional guarantee of the
right to effective assistance of counsel.” Id. at 401 (2), n. 4.
Generally, to prevail on an ineffective assistance of counsel claim, a defendant
must show both that counsel rendered deficient performance and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). But a defendant need not show that his
counsel’s deficient performance probably affected the outcome of his case under
circumstances in which the likelihood is high that counsel’s inadequate performance
undermined the reliability of the verdict. Mickens v. Taylor, , 535 U.S. 162, 166-167
(II) (122 SCt 1237, 152 LE2d 291) (2002). Those circumstances include situations
where the assistance of counsel was denied entirely or during a critical stage of the
proceeding and when counsel had an “actual conflict.” Id. For Sixth Amendment
purposes, an actual conflict of interest is one that adversely affects counsel’s
performance. Id. at 172, n. 5. For example, automatic reversal results when, despite
a timely objection, a trial court improperly requires defense counsel to continue
representing multiple defendants in a single trial without determining that no conflict
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exists. Holloway v. Arkansas, 435 U.S. 475, 488-489 (III) (98 SCt 1173, 55 LE2d
426) (1978).
Pryor’s trial counsel was not representing multiple defendants with conflicting
interests, however. Regardless of the ethical considerations of having lawyers in the
same office work for clients with competing interests, “[b]reach of an ethical standard
does not necessarily make out a denial of the Sixth Amendment guarantee of
assistance of counsel.” (Citation and punctuation omitted.) Mickens v. Taylor, 535
U.S. 162, 176 (122 SCt 1237; 152 LE2d 291) (2002).
The purpose of [the United States Supreme Court’s] Holloway[, 435
U.S. at 488-489] and [Cuyler v.] Sullivan[, 446 U.S. 335, 348-349 (IV)
(C) (100 SCt 1708, 64 LE2d 333) (1980)] exceptions from the ordinary
requirements of Strickland, however, is not to enforce the Canons of
Legal Ethics, but to apply needed prophylaxis in situations where
Strickland itself is evidently inadequate to assure vindication of the
defendant’s Sixth Amendment right to counsel.
Mickens, 535 U.S. at 176 (III). And the mere “possibility of conflict is insufficient to
impugn a criminal conviction.” Sullivan, 446 U.S. at 350 (IV) (C).
Instead, “[t]he defendant must show that an actual conflict exists, meaning that
there is a substantial risk that the lawyer’s representation of him would be materially
and adversely affected by the lawyer’s own interests or by the lawyer’s duties to
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another current client, a former client, or a third person.” (Citation and punctuation
omitted.) Lytle v. State, 290 Ga. 177, 178 (2) (718 SE2d 296) (2011). “Whether a
conflict of interest denied a defendant his right to effective counsel is a mixed
question of law and fact, and we review the questions of law involved de novo.”
(Citation and punctuation omitted.) Barrett v. State, 292 Ga. 160, 174 (3) (c) (2) (733
SE2d 304) (2012).
In State v. Abernathy, 289 Ga. 603, 604 (1) (715 SE2d 48) (2011), our Supreme
Court reversed a trial court’s grant of a new trial when a defendant failed to show
“actual harm” arising from the simultaneous representation of two co-defendants by
two lawyers working in the same public defender’s office.1
[T]he critical question is whether the conflict significantly affected the
representation, not whether it affected the outcome of the underlying
proceedings. That is precisely the difference between ineffective
assistance of counsel claims generally, where prejudice must be shown,
and ineffective assistance of counsel claims involving actual conflicts
of interest, which require only a showing of a significant effect on the
representation. A significant effect on the representation may be found,
1
While the opinions in Lytle and Abernathy were issued after the Georgia
Supreme Court granted the petition for discretionary review of the Bar’s advisory
opinion but before its final ruling in July 2013, nothing in the final ruling requires a
different analysis.
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for example, where counsel is shown to have refrained from raising a
potentially meritorious issue due to the conflict; where counsel
negotiates a plea bargain for more than one defendant in a case
conditioned on acceptance of the plea by all such defendants; or where
one of the State’s witnesses was a current client of defense counsel in an
unrelated criminal matter, thereby constraining counsel’s ability to
cross-examine the witness.
(Citations and emphasis omitted.) Id. at 604-605 (1).
In Abernathy, 289 Ga. 603-604 (1), a public defender from the same office as
Abernathy’s counsel briefly represented a man who was arrested with Abernathy, but
withdrew after the man hired another lawyer. Charges against the man were
subsequently dismissed, he ended up testifying for the State, and the trial court
subsequently granted Abernathy’s motion for new trial on the ground of ineffective
assistance due to a conflict of interest. Id. at 603 (1). The Supreme Court reversed.
Assuming then that the rules for imputing conflicts within a single circuit public
defender office operate the same way as the rules within a law firm (as we now know
they do), the court held that the defendant must prove that an actual conflict existed
and that it affected trial counsel’s performance. Id. at 604 (1). In that case, no
evidence indicated that the conflict “colored counsel’s actions during the trial,” id.9
at 605 (1), especially considering that Abernathy’s lawyer did not even know about
the other public defender’s brief past representation of the State’s witness.
Similarly, in Lytle, 290 Ga. at 178-179 (2), although public defenders from the
same office represented two co-indictees and the same investigator worked on all
three cases, no actual conflict arose because the attorneys did not share information
with each other and the investigator only interviewed State’s witnesses to see what
they knew.
Here, Pryor has not even argued that any conflict significantly affected his trial
counsel’s representation of him. His trial counsel testified at the motion for new trial
hearing that when he was representing Pryor, the circuit public defender’s office was
very aware of the problems that could arise from having attorneys from the office
represent co-defendants and was seeking direct guidance on the issue. It was “a big
issue,” with lawsuits being filed and constant discussion and review on how to handle
the issue. Although they were all under the same roof, pursuant to office policy the
attorneys made “every effort to separate representation” by maintaining individual
offices, locking their doors to bar access to their files, and being “very, very careful.”
As the State notes in its appellant brief, trial counsel “did not pull any punches” in his
cross-examination of Frails, addressing his drug dealing, his relationship as cousin
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to defendant Brown, who Frails testified did not have a gun, his maximum possible
sentence of more than 65 years versus his actual sentence of 6 years to serve followed
by 6 on probation, and his belief that his testimony would buy him leniency. In fact,
the trial court admonished counsel not to point at Frails during the cross-examination.
“Simply put, [Pryor] has not shown in this case how his attorney’s conflict caused
divided loyalties or compromised his attorney’s representation of him.” (Citation and
punctuation omitted.) Abernathy, 289 Ga. at 605 (1).
Accordingly, we find no merit in this enumeration of error.
2. Pryor contends that the trial court erred in failing to find his counsel
ineffective for failing to object to the investigator’s testimony that the victims were
acting in self-defense when they shot Pryor and his co-defendants or for failing to
object to the admission of pants gathered at the scene that had bullet holes in the
buttocks. “To prevail on his claim of ineffective assistance of counsel, [Pryor] 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.” (Citation and punctuation
omitted.) Patterson v. State, 327 Ga. App. 695, 697 (3) (761 SE2d 101) (2014).
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a. “It is well established that credibility of a witness is a matter for the jury, and
a witness’s credibility may not be bolstered by the opinion of another witness as to
whether the witness is telling the truth.” (Punctuation and footnote omitted.)
Strickland v. State, 311 Ga. App. 400, 403 (a) (715 SE2d 798) (2011). But “the
testimony at issue must be reviewed in the context in which it was given.” Branesky
v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669) (2003). And while an officer
rarely needs to explain his conduct during the course of an investigation, an
explanation may be admissible if a defendant “at trial raises questions and concerns
about police conduct in the case.” (Citation omitted.) Reeves v. State, 288 Ga. 545,
547 (3) (705 SE2d 159) (2011).
Considered in context, the investigator’s testimony that after completing the
interviews and reviewing the evidence from the scene, the three men initially taken
into custody were no longer suspects because “the events they described were self-
defense defending their selves in a forceable felony” explained the investigator’s
conduct in pursuing charges against the three men who were shot rather than the
shooters. As the State observes, the facts of this case raise questions about the
motivations and conduct of the police, who initially arrested the three men who were
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subsequently cast as victims after the officers arrived on the scene to find three men
lying on the ground with bullet wounds.
Pryor’s trial counsel intimated throughout the trial that the men who did the
shooting should have been charged with crimes, rather than the men who had been
shot. For example, he thoroughly cross-examined the second victim, who picked up
Pryor’s gun and fired at the three robbers, asking whether he had argued with anyone
that night, why he had gotten his companion’s firearm out when they arrived at the
car after they left the club, whether he just kept firing the gun until it was empty, and
whether he had been arrested initially “after shooting at people and being arrested and
you said they tried to rob you.” Pryor’s counsel asked the officer who secured the
scene to identify the victim whom the officer had seen firing a weapon, and asked
whether that man had been “firing at an individual who was actually running away
from him.”
Trial counsel’s questions about why the victims who were initially arrested
were not ultimately charged placed the investigator’s conduct in issue and the
investigator’s testimony tended to explain his conduct. See Griffin v. State, 292 Ga.
321, 323 (5) (737 SE2d 682) (2013). Because the testimony was admissible, Pryor’s
trial counsel was not ineffective for failing to object to it.
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B. Pryor also claims that his trial counsel was ineffective for failing to object
to the admission of pants gathered from the scene that had bullet holes in the buttocks
and .38 bullets in the pocket. The evidence showed that Pryor was shot in the chest
or neck, and Pryor argues that the bullet-ridden pants were not his and should have
been excluded from evidence.
Whether the pants belonged to Pryor or not goes to the weight of the evidence,
not its admissibility, and an objection would have been futile. Davis v. State, 272 Ga.
327, 330 (4) (528 SE2d 800) (2000). As the failure to pursue a futile objection does
not amount to ineffective assistance, Ventura v. State, 284 Ga. 215, 218 (4) (663
SE2d 149) (2008), the trial court did not err in denying Pryor’s motion for new trial
on this ground.
Judgment affirmed. Ray and McMillian, JJ., concur.
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