Hafeez v. the State ( 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 15, 2016
In the Court of Appeals of Georgia
A16A1174. HAFEEZ v. THE STATE. McF-040C
MCFADDEN, Judge.
After a jury trial, Adnan Hafeez was convicted of aggravated assault and armed
robbery. He appeals, arguing that the trial court erred by denying his motion for new
trial under OCGA §§ 5-5-20 and 5-5-21 because the verdict is contrary to evidence
and the principles of justice, that the trial court abused his discretion in admitting still
photos printed from a surveillance video recording, and that the court abused his
discretion in admitting hearsay testimony. Hafeez has not shown an abuse of
discretion in any one of these instances. Hafeez also argues that trial counsel was
ineffective, but he has not shown that trial counsel’s performance was both deficient
and prejudicial. We therefore affirm.
1. Evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal conviction, “the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any 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 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
emphasis in original). It is the function of the jury, not the reviewing court, to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the evidence. Id. “[T]he evidence must be viewed in the light most favorable to
the verdict, and the defendant no longer enjoys the presumption of innocence. . . .”
Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citations omitted). “As
long as there is some competent evidence, even though contradicted, to support each
fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller
v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).
So viewed, the evidence shows that on the evening of October 16, 2010, a man
wearing a neon green and black motorcycle helmet, a gray hooded sweatshirt with a
symbol on it, and jeans with distinctive holes in them entered a Phillips 66
convenience store in Paulding County. The man asked the cashier for a cigar, and
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when the cashier opened the cash drawer to get change, the man pointed a gun at him
and demanded all the money. The cashier gave him about $200. The state played a
surveillance video for the jury and introduced multiple photos taken from the video.
The store’s cashier identified the man who robbed him from one of the photos.
Hafeez’s appeal involves his convictions arising from this October 16, 2010 robbery.
Two days before the October 16 robbery, on October 14, 2010, a man wearing
a gray hooded sweatshirt with a symbol on it, jeans with distinctive holes in them, and
a green motorcycle helmet had robbed at gunpoint the cashier of a Chevron
convenience store in the city of Austell in Douglas County. The store’s surveillance
video captured the robbery, and the state introduced a photograph taken from that
video that showed the robber wearing a motorcycle helmet identical to the helmet
worn by the person who robbed the Paulding County Phillips 66 on October 16.
A week after the robbery of the Austell Chevron, on October 21, 2010, the
cashier at a Cobb County Shell convenience store called the police because a
customer told him someone wearing blue jeans, a hooded sweatshirt, and a
motorcycle helmet was lurking behind the store. The call was remarkable to the police
officer who responded because that description matched the description of the robber
of the Austell Chevron convenience store on October 14, 2010. When he arrived at
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the Cobb County Shell store, the officer saw Hafeez, who matched the description the
cashier gave as well as the description of the robber of the Austell Chevron store. The
officer detained Hafeez. A dashboard camera recording of the encounter was played
for the jury and showed that Hafeez was wearing clothes identical to the clothes worn
by the person who robbed the Paulding County Phillips 66 on October 16.
Backup arrived, including an officer who had responded to the robbery of the
Austell Chevron store and who determined that Hafeez was the person he had seen
in the video of the robbery of that store the week before. The officers located what
they thought to be a pistol leaning against the back of the Shell building, but it was
actually an Airsoft gun.
Hafeez eventually pleaded guilty to robbery by force as a lesser included
offense of the October 14, 2010, armed robbery of the Austell Chevron store.
The trial court admitted evidence of this plea in the instant trial involving the
October 16, 2010, Paulding County robbery.
This evidence was sufficient to authorize a rational trier of fact to find beyond
a reasonable doubt that Hafeez was guilty of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U. S. at 307. Further, “whether to grant a new trial under
[OCGA §§ 5-5-20 or 5-5-21] is a matter solely in the discretion of the trial court.
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And, no abuse of that discretion has been shown.” Perdue v. State, 298 Ga. 841, 844
n. 5 (2) (785 SE2d 291) (2016) (citation omitted).
2. Photographs from the video tape.
Hafeez argues that the trial court erred by admitting the photographs taken
from the surveillance video of the October 16 robbery at issue because the admission
of the photographs violated the best evidence rule and the photographs were
cumulative of the video. We disagree.
The best evidence rule is stated in OCGA § 24-10-1002: “To prove the
contents of a writing, recording, or photograph, the original writing, recording, or
photograph shall be required.” Here, the state admitted the video tape itself, so the
admission of photographs extracted from that tape presents no best evidence
concerns. See Milich, Ga. Rules Of Evidence § 8:1 (Among other issues, the best
evidence rule applies to determine “when are copies of a writing or recording
admissible in lieu of the original.”) (emphasis supplied).
As for Hafeez’s argument that the trial court erred by admitting the
photographs because they were cumulative, “[g]enerally, the admission of cumulative
evidence is harmless. And here, [Hafeez] failed to demonstrate how the admission of
these photographs was prejudicial. Thus, [his] claim that the admission of this
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cumulative evidence constituted reversible error lacks merit.” Tyner v. State, 313 Ga.
App. 557, 560 (2) (722 SE2d 177) (2012) (citation and punctuation omitted).
Finally, Hafeez has abandoned his enumeration of error that the court erred by
allowing the photographs to go back with the jury because he makes no argument in
support of it. See Court of Appeals Rule 25 (c) (2). See also Murphy v. Murphy, 330
Ga. App. 169, 173 (4) (767 SE2d 789) (2014).
3. Hearsay.
Hafeez argues that the trial court erred by allowing the cashier of the Cobb
County Shell store to testify that a customer told him someone was lurking behind the
store. Hafeez argues that this testimony was hearsay. We disagree.
The state offered this testimony, not to prove that someone was lurking behind
the store, but to explain why the cashier called the police. “Because the evidentiary
value of the statements did not rest upon whether the declarant was being truthful or
honest, the trial court did not err in overruling [Hafeez’s] general objection to the
statements on hearsay grounds.” Brown v. State, 332 Ga. App. 635, 638 (1) (774
SE2d 708) (2015) (citations omitted). See also Graham v. State, 331 Ga. App. 36, 39
(2) (769 SE2d 753) (2015) (testimony concerning an out-of-court statement was not
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offered for its truth, but to explain its effect on those who heard the statement and
their subsequent conduct, and was, therefore, admissible as nonhearsay).
And to the extent that the cashier’s testimony about the customer’s description
of the clothing worn by the person lurking behind the store was inculpatory, that
description was cumulative of the arresting officer’s testimony and the dashboard
camera recording of his encounter with Hafeez.
4. Assistance of counsel.
Hafeez argues that trial counsel was ineffective in three respects. First, he
challenges counsel’s failure to give the state timely notice of an alibi defense, which,
he argues, prevented him from presenting that defense. Second, he argues that counsel
failed to request certain jury instructions. Third, he argues that counsel failed to
object to comments on his silence. We find that Hafeez has not shown both deficient
performance and prejudice.
To prevail on his claim of ineffective assistance of counsel, Hafeez
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 [Hafeez] fails to [prove] either prong
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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).
(a) Alibi defense.
Hafeez challenges trial counsel’s failure to timely give notice of an intention
to present an alibi defense, which, he argues, prevented him from pursuing such
defense. He also challenges counsel’s failure to call alibi witnesses.
Before the defense presented its case, the state moved to prevent the
introduction of an alibi defense on the ground that Hafeez had not given timely notice
as required by OCGA § 17-16-5 (a). Counsel responded that he did not have any alibi
witnesses, so the trial court reserved ruling on any issues concerning an alibi defense.
Thus, to the extent that Hafeez argues that trial counsel’s failure to timely give notice
prevented the presentation of an alibi defense, and thus affected the outcome of the
trial, his argument is misplaced.
As for counsel’s decision not to call any alibi witnesses, the only potential alibi
witness who testified at the motion for new trial hearing was Hafeez’s sister.
“Therefore, [Hafeez] cannot meet his burden of showing ineffective assistance based
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on counsel’s failure to call [any other] witness at trial.” Lupoe v. State, 284 Ga. 576,
578-579 (3) (b) (669 SE2d 133) (2008) (citation omitted).
As for the sister, she testified at the motion for new trial hearing that at 7 p.m.
on October 16, the day of the Paulding County crime, Hafeez drove her, their mother,
and other family members to a baby shower. She testified that she drove them all
home between eight and nine p.m., where they all stayed for the night. The sister
testified at the new trial hearing that she had been at the courthouse, waiting outside
the courtroom to testify, when trial counsel said it would be better for her not to
testify at the trial.
Trial counsel testified that the sister chose not to testify, that Hafeez agreed
with not calling her, and that the sister signed a document stating she did not want to
testify. Counsel testified that regardless of the sister’s preference not to testify, he did
not believe she would have been a good alibi witness and that she would not have
helped Hafeez’s case, particularly once she was subjected to cross-examination. He
based this assessment on the information the sister provided him, her demeanor, and
her body language.
A decision as to which defense witnesses to call is a matter of
counsel’s trial strategy and tactics and will not support a claim of
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ineffective assistance of counsel unless it is so unreasonable that no
competent attorney would have made the decision under the
circumstances. Given [] trial counsel’s firsthand concerns . . . we cannot
say that the strategic decision not to call [the sister] at trial was patently
unreasonable. Thus, [Hafeez] failed to show deficient performance.
Moss v. State, 298 Ga. 613, 619 (5) (d) (783 SE2d 652) (2016) (citations omitted).
(b) Lesser included offenses.
Hafeez argues that trial counsel was ineffective for failing to request the court
to charge the jury on lesser included offenses. Trial counsel testified that he and co-
counsel did not request the court to instruct the jury on lesser included offenses, at
Hafeez’s direction, because Hafeez insisted that he was innocent. Hafeez confirmed
this at the motion for new trial hearing. “[T]he decision not to request a jury charge
on a lesser included offense in order to pursue an ‘all-or-nothing’ defense is a matter
of trial strategy, and reasonable trial strategy, whether wise or unwise, generally does
not amount to ineffective assistance of counsel.” Wells v. State, 295 Ga. 161, 166 (2)
(758 SE2d 598) (2014).
(c) Failure to object to alleged comments on Hafeez’s silence.
Hafeez argues that trial counsel was ineffective for failing to object to alleged
comments on his pre-arrest silence. But at the hearing on the motion for new trial,
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trial counsel was not asked about his failure to object to these alleged comments. We
therefore do not address this argument. See Doyle v. State, 291 Ga. 729, 732 (3) (733
SE2d 290) (2012); Jackson v. State, 288 Ga. App. 432, 434 (654 SE2d 232) (2007)
(in absence of trial counsel’s testimony we cannot assume counsel’s actions fell
outside the presumed wide range of reasonable professional assistance).
Judgment affirmed. Miller, P. J., and McMillian, J., concur.
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