Thompson v. the State , 341 Ga. App. 883 ( 2017 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
June 21, 2017
In the Court of Appeals of Georgia
A17A0327. THOMPSON v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Cedric Thompson was convicted of three counts of
aggravated battery and one count of possession of a firearm during the commission
of a felony. Thompson challenges the sufficiency of the evidence, but there was
enough evidence to authorize the jury to find guilt beyond a reasonable doubt. He
complains of the omission of certain language from a jury instruction that the
testimony of a single witness is sufficient to establish a fact, but that instruction was
not objected to and did not constitute plain error. And he challenges the effectiveness
of his trial counsel, but trial counsel’s performance was not both deficient and
prejudicial. So we affirm.
1. Sufficiency of the evidence.
Thompson contends that there was insufficient evidence to support his
convictions. The contention is without merit.
The applicable standard of review directs that
When reviewing a defendant’s challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to the jury’s
verdict, and the defendant no longer enjoys the presumption of
innocence. We do not weigh the evidence or determine witness
credibility, but only determine if the evidence was sufficient for a
rational trier of fact to find the defendant guilty of the charged offense
beyond a reasonable doubt.
Kilby v. State, 289 Ga. App. 457 (1) (657 SE2d 567) (2008) (citations omitted).
So viewed, the evidence showed that on October 8, 2011, Thompson was
outside at an apartment complex in Atlanta, yelling that anyone selling drugs in the
neighborhood would have to give him a 10 percent commission. Darrice Smith, who
was standing with a group of men, laughed as Thompson yelled. Thompson then went
into his apartment and returned with a handgun. Thompson began shooting the gun,
hitting Smith in the leg with a bullet. As Thompson continued firing, his gunshots hit
two other victims – Sandra Howell was shot in the arm as she ran back to an
apartment and 14-year-old T. D. was shot in the foot as she ran down steps. The
evidence was sufficient to authorize a rational trier of fact to find Thompson guilty
beyond a reasonable doubt of the charged offenses of aggravated battery (OCGA §
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16-5-24) and possession of a firearm during the commission of a felony (OCGA § 16-
11-106). See Fulton v. State, 278 Ga. 58, 59 (1) (597 SE2d 396) (2004).
2. Jury instruction on testimony of a single witness.
Thompson asserts that the trial court erred in instructing the jury that the
“[t]estimony of a single witness is sufficient to establish a fact.” He argues that the
instruction should have included the following emphasized language, as set forth in
the suggested pattern jury instructions: the “testimony of a single witness, if believed,
is sufficient to establish a fact.” Georgia Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases, §1.31.90 (emphasis supplied). As Thompson concedes in his brief,
no objection to the instruction was raised at trial, and therefore we review it for plain
error under OCGA § 17-8-58 (b).
[T]he test for determining whether there is plain error in jury
instructions under OCGA § 17-8-58 (b) [is] as follows. First, there must
be an error or defect – some sort of deviation from a legal rule – that has
not been intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant. Second, the legal error must be clear or
obvious, rather than subject to reasonable dispute. Third, the error must
have affected the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the outcome of the trial
court proceedings. Fourth and finally, if the above three prongs are
satisfied, the appellate court has the discretion to remedy the error –
discretion which ought to be exercised only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.
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Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012) (citation
omitted). “Thus, beyond showing a clear or obvious error, plain-error analysis
requires the appellant to make an affirmative showing that the error probably did
affect the outcome below.” Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d 772)
(2016) (citation and punctuation omitted).
In this case, even if we assume, without deciding, that the jury instruction was
erroneous, Thompson has not shown that such error probably affected the outcome
below. “[A]n erroneous jury instruction cannot be considered in isolation, but must
be considered in the context of the entire jury charge on the record as a whole to
determine whether there is a reasonable likelihood that the jury improperly applied
the challenged instruction.” Davis v. State, 329 Ga. App. 797, 801 (2) (764 SE2d 588)
(2014) (citation omitted). Here, after the trial court gave the single witness jury
charge, it fully charged the jury on the credibility of witnesses. Amongst other things,
the court instructed the jurors that they must determine the credibility of the witnesses
and that they must decide which witnesses and which testimony to believe or not
believe. The court further charged the jury on the various factors to consider in
deciding witness credibility.
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Given the jury instructions as a whole, there is no reasonable likelihood that
the jury improperly applied the challenged instruction as not requiring them to
determine the believability of any single witness. Rather, it is apparent that the jury
was fully informed that they were required to determine the credibility of all of the
witnesses and the believability of their testimony. Because Thompson has failed to
make an affirmative showing that the jury instruction probably affected the outcome
below, the instruction did not constitute plain error.
3. Ineffective assistance of counsel.
Thompson claims that his trial counsel was ineffective in failing to object to
the single-witness jury instruction discussed above, in failing to object to testimony
about a transcript of recorded telephone conversations, and in withdrawing a hearsay
objection to certain testimony. “To prevail on these claims, [Thompson] must show
both that his counsel’s performance was deficient and that the deficient performance
so prejudiced him that, but for the deficiency, there is a reasonable probability that
the outcome of the trial would have been different.” Daniel v. State, 338 Ga. App.
389, 392 (3) (787 SE2d 281) (2016) (citations omitted). “Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” Cushenberry v. State, 300 Ga. 190, 197 (3) (794 SE2d 165)
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(2016) (citations and punctuation omitted). Thompson has failed to show both
deficient performance and prejudice.
a. Failure to object to jury instruction.
Thompson claims that his trial counsel was ineffective in failing to object to
the jury instruction on the testimony of a single witness being sufficient to establish
a fact because it omitted the “if believed” language of the pattern jury instruction as
discussed above in Division 2. In the case of Wilhite v. State, 337 Ga. App. 324 (787
SE2d 293) (2016), this same claim of ineffective assistance was rejected on the
ground that the appellant had “failed to show the requisite prejudice in light of the
trial court’s full charge to the jury, which included an instruction that the jury must
determine witness credibility and decide which witnesses to believe or not to
believe.” Id. at 327 (1) (c). Likewise, in the instant case, Thompson has failed to show
that he was prejudiced by the lack of an objection to the single witness jury
instruction in light of the trial court having fully charged the jury on its duties to
determine witness credibility and to decide which witnesses to believe or not believe.
b. Failure to object to testimony about transcript.
At trial, a deputy sheriff identified Thompson’s voice on recorded jail
telephone conversations. Portions of the recorded calls, totaling approximately three
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minutes, were then played for the jury. Thereafter, the state showed a transcript of the
recording to the deputy and asked him questions about its contents. Thompson now
asserts that his trial counsel was ineffective in failing to object to the deputy’s
testimony about the transcript, arguing that the transcript, unlike the recording, was
not evidence and that the deputy’s testimony improperly gave credibility to the
transcript.
Thompson, however, has not identified any specific part of the transcript that
differed from the recording played for the jury, has not pointed to any testimony by
the deputy that misconstrued the contents of the transcript or the recording, and has
not shown how he was harmed by the testimony. Thus, even if we assume that
counsel was deficient in failing to object to the deputy’s testimony about the
transcript, Thompson has not shown that, but for the lack of such an objection, there
is a reasonable probability the outcome of the trial would have been different. See
Stokes v. State, 281 Ga. 825, 834 (8) (e) (642 SE2d 82) (2007) (no ineffective
assistance where appellant did not demonstrate how alleged failures of counsel
resulted in prejudice to his defense).
c. Withdrawal of hearsay objection.
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Thompson contends that his trial counsel was ineffective in withdrawing a
hearsay objection to a detective’s testimony that the mother of one of the shooting
victims had said that she knows Thompson from the apartment complex. At the
motion for new trial hearing, Thompson’s counsel testified that sometimes a decision
to allow hearsay can be strategic. When Thompson further questioned trial counsel
about withdrawing a hearsay objection, counsel responded that “trials are very fluid,”
that “there are so many things going on at trials [that] strategies change depending on
how testimony comes out from various witnesses,” that she had no rule to stay with
an objection “because there could have been something else going on in the trial,”
and that she could not “answer the question with a hard [and] fast rule because things
change all the time during trial.” Thompson elicited no other testimony from trial
counsel explaining any further motive behind her decision to withdraw the hearsay
objection.
As a general rule, matters of reasonable trial strategy and tactics do not amount
to ineffective assistance of counsel, and an attorney’s decision to forego objecting to
hearsay may constitute reasonable trial strategy. Williams v. State, 282 Ga. 561, 564
(5) (a) (651 SE2d 674) (2007). “In the absence of testimony to the contrary, counsel’s
actions are presumed strategic.” Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343)
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(2005) (citation and punctuation omitted). Here, because Thompson failed to elicit
any such testimony to the contrary, trial counsel’s decision to forego the hearsay
objection “is presumed strategic and will not support a claim of ineffective
assistance.” Traylor v. State, 332 Ga. App. 441, 448 (3) (b) (773 SE2d 403) (2015)
(citations omitted). See also Futch v. State, 286 Ga. 378, 383 (2) (c) (687 SE2d 805)
(2010).
Judgment affirmed. Branch and Bethel, JJ., concur.
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