CROMER v. the STATE. , 348 Ga. App. 113 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, 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
October 25, 2018
In the Court of Appeals of Georgia
A18A0828. CROMER v. THE STATE. DO-028 C
DOYLE, Presiding Judge.
Following a jury trial, Tomdrick L. Cromer was convicted of armed robbery,1
aggravated assault,2 criminal trespass,3 and possession of a firearm by a convicted
felon during a felony4 (two counts). He appeals from the denial of his motion for new
trial, contending that (1) he received ineffective assistance of counsel, and (2) the trial
1
OCGA § 16-8-41 (a).
2
OCGA § 16-5-21 (a) (2).
3
OCGA § 16-7-21 (a).
4
OCGA § 16-11-133 (b) (1).
judge erred by failing to sua sponte recuse following an ex-parte communication with
the State about his case.5 Finding no reversible error, we affirm.
Construed in favor of the verdict,6 the evidence shows that in December 2013,
Cromer told his girlfriend, with whom he lived, that he was going out to get cigarettes
and to see his friend, James Roney. With his girlfriend’s permission, Cromer left in
her black Ford F-150, telling her that he would have Roney work on the brakes in the
truck.
Meanwhile, Curtis Smith was finishing up a night of bowling with his league.
As Smith walked to his car in a covered parking area, he noticed two men walking
through the parking area, momentarily losing sight of them until he saw one reappear,
approaching him with a gun, saying, “Don’t look at me. Turn around.” The gunman
ordered Smith to give him his phone and wallet, Smith complied, and then the
gunman fled. The robbery was witnessed by at least two other league members, but
none of them were able to visually identify the gunman. Two league members chased
the gunman, who continued his flight while exchanging gunfire with one league
5
Cromer initially enumerated a third error based on post-trial precedent in Olds
v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016), but he withdrew this enumeration
in his reply brief.
6
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
2
member who was armed. The witnesses saw the gunman get picked up by a black
Ford F-150, which had been waiting nearby, idling with its lights off.
Police responded to the scene, and shortly thereafter, pulled over the black Ford
F-150, which was on a road in the area and occupied by Cromer and Roney. The
officer told them that he had stopped the vehicle because there had been an armed
robbery involving a vehicle fitting the description of their truck. Roney replied that
“he had actually driven to the area to see if he could help, because he had heard
gunshots.” The officer obtained consent to search the truck and discovered suspected
cocaine in the console. The officer arrested Roney, found additional suspected
cocaine in his pocket, and impounded the truck.
Continuing the investigation the next day, police discovered Smith’s wallet
under a car in a used car lot near the bowling alley. Underneath another car in the
same lot, an officer found a discarded pistol and Smith’s cell phone. The pistol was
in a condition showing that it had been fired until the magazine was empty, with the
slide locked back to the rear, exposing a portion of the barrel normally covered by the
slide. Later analysis matched the pistol to the ballistics evidence from the scene of the
shootout and matched a fingerprint on the pistol with Cromer. Cromer’s fingerprint
3
also was found on an interior portion of the truck door inaccessible with the door
shut.
Based on the police investigation, Cromer (jointly with Roney) was charged
with multiple offenses arising from the robbery and shootout. Following a jury trial,
Cromer was found guilty of committing armed robbery, aggravated assault, criminal
trespass, and possession of a firearm by a convicted felon during a felony. Cromer
unsuccessfully moved for a new trial, and he now appeals.
1. Cromer contends that he received ineffective assistance of counsel because
his trial counsel failed to engage and call an expert to refute testimony by the State’s
witness that the fingerprint on the pistol was in a place that was only exposed after
all of the ammunition was fired from the gun. We disagree.
To establish that his trial counsel was constitutionally ineffective,
[Cromer] was required to prove both deficient performance by counsel
and resulting prejudice. To prove deficient performance, [Cromer] had
to demonstrate that counsel performed his duties in an objectively
unreasonable way, considering all the circumstances and in the light of
prevailing professional norms. Because judicial scrutiny of counsel’s
performance must be highly deferential, the law recognizes a “strong
presumption” that counsel performed reasonably, and the defendant
bears the burden of overcoming this presumption. To carry this burden,
[Cromer] must show that no reasonable lawyer would have done what
4
his counsel did, or failed to do what his counsel did not do. In particular,
decisions regarding trial tactics and strategy may form the basis for an
ineffectiveness claim only if they were so patently unreasonable that no
competent attorney would have followed such a course.
Even if a defendant can prove that his counsel’s performance was
deficient, he must also prove prejudice by showing a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. It is not enough to show that the
errors had some conceivable effect on the outcome of the proceeding.
Rather, the defendant must demonstrate a “reasonable probability” of a
different result, which, the United States Supreme Court has explained,
is “a probability sufficient to undermine confidence in the outcome.” In
all, the burden of proving a denial of effective assistance of counsel is
a heavy one.7
Turning to the facts in this case, Cromer admitted that the gun involved in the
robbery belonged to him , and the State endeavored to show that the fingerprint found
on the gun was not a leftover print from a time when the gun was in Cromer’s
possession apart from the robbery. The State called a witness who explained that the
fingerprint on the pistol matching Cromer’s could not have been a leftover print
7
(Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (a)
(782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 687, 694
(III) (B) (104 SCt 2052, 80 LE2d 674) (1984).
5
because it was in a place only exposed when the slide was pulled or locked back, the
pistol’s slide would leave marks on the print during operation, and the heat from
firing the weapon would destroy any leftover prints in that location. On appeal,
Cromer argues that his trial counsel should have called an expert witness to refute this
testimony and explain how that print might have survived multiple shots being fired.
At the motion for new trial hearing, Cromer’s new counsel proffered expert
testimony from a former firearm examiner at the Georgia Bureau of Investigation who
opined that the fingerprint at issue “would [survive] the heat” generated by several
shots being fired. But Cromer’s proffered expert never examined the pistol used in
this case and could not have addressed the fact that the slide would have marked or
damaged the fingerprint had it been left prior to the shootout at the robbery. When
Cromer’s trial counsel was asked about his approach to challenging the State’s expert
testimony, trial counsel explained that he had hired a fingerprint expert to advise him
on the case. Based on what trial counsel learned from the expert, including that the
evidence “would . . . have some linkage there between the fingerprint and a possible
person operating the gun,” he decided for strategic reasons not to “run away” from
the fingerprint evidence, instead pointing out that the fingerprint could have been
from a different occasion.
6
It is well established that the decision as to which defense
witnesses to call is a matter of trial strategy and tactics. In particular, the
decision of how to deal with the presentation of an expert witness by the
opposing side, including whether to present counter expert testimony,
to rely upon cross-examination, to forego cross-examination and/or to
forego development of certain expert opinion, is a matter of trial strategy
which, if reasonable, cannot be the basis for a successful ineffective
assistance of counsel claim.8
Based on the record before us, including testimony from Cromer’s trial counsel about
his strategic reasons for not calling an expert, we discern no basis for reversal.
2. Cromer next contends that his due process right to a fair trial was violated
when the trial court failed to sua sponte recuse himself due to alleged ex-parte
communications with the State revealing a bias against Cromer. We disagree.
At the motion for new trial hearing, which hearing was heard by a different
superior court judge, Cromer presented evidence that after his conviction in this case,
his trial counsel was contacted by another attorney who, while doing unrelated work,
happened to encounter courtroom video depicting the trial judge in this case speaking
8
(Punctuation omitted.) Davis v. State, 342 Ga. App. 889, 895-896 (2) (806
SE2d 3) (2017).
7
informally with the State’s attorneys in open court about the schedule for the next
week’s trial (i.e., Cromer’s trial). The following conversation ensued.
Trial judge: Seventeen witnesses? Really?
State: We may be able to cut it down a little bit.
Trial judge: Nowadays it seems like more is better, unfortunately.
State: The thin-to-win strategy is a preferable strategy at trial.
[Brief mention of the presence of similar transaction evidence.]
Trial judge: Well, hopefully this jury does the right thing. Had some
unusual cases lately, unusual juries.
State: Yeah, it’s hard to get a fair shake in Cobb County.
Trial judge: God, that was crazy. That one was crazy. . . . [T]he whole
time I was saying you’re putting too much evidence on, you’re making
a mountain out of a mole hill. I couldn’t believe . . . they weren’t going
to convict on the [testimony from the] cop. I did not believe it on the
EMT. I was really surprised by that. That was kind of . . . crazy.
8
Apart from this colloquy, Cromer points to no evidence of bias in the hearing of his
case, including the conduct of trial and the sentencing by the trial court.9
Cromer contends that the above exchange, which occurred without the
presence or knowledge of defense counsel, reveals the presence of actual bias against
Cromer that deprived him of his right to a fair trial under the Due Process Clause.
A trial judge generally ought not give advice to a lawyer about
trial strategy in a case in which the judge is presiding. At least in some
circumstances, the giving of such advice could create an appearance of
partiality, which is a proper ground for a motion to recuse under our
Code of Judicial Conduct. And for the purposes of this appeal, we will
assume — without deciding — that the conversation in [open court]
created such an appearance of partiality. But not every violation of the
Code of Judicial Conduct implicates the constitutional guarantee of due
process. . . . [T]he Due Process Clause demarks only the outer
boundaries of judicial disqualifications, and generally speaking, the
codes of judicial conduct provide more protection than due process
requires. Accordingly, the constitutional standard for judicial
disqualification is confined to rare instances. . . .
[D]ue process is concerned with actual bias, and absent a showing
of actual bias, due process requires recusal only in particular
9
Cf. Barnett v. State, 300 Ga. 551, 555 (2) (796 SE2d 653) (2017) (“[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.”)
(punctuation omitted).
9
circumstances in which the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable. For
instance, due process may require recusal when a judge has a direct
pecuniary interest in the outcome of a case, when a judge has an
indirect, but substantial, pecuniary interest in the outcome, when a judge
has executive responsibilities for the finances of an organization with a
direct pecuniary interest in the outcome, when a person with a personal
stake in a particular case had a significant and disproportionate
influence in placing the judge on the case by raising funds or directing
the judge’s election campaign when the case was pending or imminent,
when a judge personally was responsible for the bringing of the charges
to be tried, and when a judge has been so personally vilified by a party
charged with contempt as to necessarily become embroiled in a running,
bitter controversy with the contemnor.10
When determining whether there is a due process violation, a reviewing court looks
at “whether, as an objective matter, the average judge in his position is likely to be
neutral, or whether there is an unconstitutional potential for bias.”11
Here, there is no allegation nor any evidence that the trial judge in this case had
a personal or pecuniary interest in the case or any relationship to a party such that
10
(Citations and punctuation omitted, emphasis in original.) Pyatt v. State, 298
Ga. 742, 751-752 (5) (784 SE2d 759) (2016).
11
(Punctuation omitted.) Williams v. Pennsylvania, 579 U. S. __ , __ (II) (A)
(136 SCt 1899, 195 LE2d 132) (2016).
10
Cromer’s due process interest was implicated. With respect to the particular
comments at issue, the better practice would be to avoid such discussions, particularly
with attorneys appearing before the court. Nevertheless, the trial judge’s comments
essentially addressed certain witness testimony in an unrelated trial that already had
concluded. Even if the judge’s comments reflected his view on the credibility of a
particular police officer’s testimony in the unrelated trial, the comments did not
amount to an opinion that all law enforcement testimony should be believed or that
it should be believed in Cromer’s case. Likewise, the comments about the jury doing
the “right thing” did not state what the “correct” outcome should be with respect to
any particular case, including Cromer’s.
In sum, despite Cromer’s well-made argument to the contrary, the record does
not reveal an unacceptable risk of bias such that the average judge in this
circumstance is not likely to be neutral.12
12
See Pyatt, 298 Ga. at 749-753 (5). Cromer also argues that a new trial is
necessary in light of State v. Wakefield, 324 Ga. App. 587 (751 SE2d 199) (2013),
which affirmed the grant of new trials based on the discovery that the trial judge had
engaged in an affair with a public defender who appeared before the judge. See id.
at 594 (2) (c). Wakefield was based on the mandatory recusal standard in Canon 3 (E)
of the Code of Judicial Conduct, which is implicated when a trial judge’s impartiality
might reasonably be questioned based on, e.g., a personal bias concerning a party or
an attorney. In light of the stark difference between the conduct at issue in Wakefield
and in this case, we find Cromer’s argument unpersuasive.
11
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.
12