Barney v. the State , 333 Ga. App. 807 ( 2015 )


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  •                                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
    September 15, 2015
    In the Court of Appeals of Georgia
    A15A1528. BARNEY v. THE STATE.
    RAY, Judge.
    An Emanuel County jury convicted Eric LaShuwn Barney, II, of two counts of
    burglary. He appeals from the denial of his motion for new trial, arguing that the trial
    court committed plain error in failing to charge the jury on accomplice corroboration
    and in granting the State’s motion for re-sentencing. He also argues that the evidence
    was insufficient to support his convictions and that he received ineffective assistance
    of counsel. For the following reasons, we affirm his conviction, but vacate his
    sentence and remand the case to the trial court for re-sentencing.
    On appeal from a criminal conviction, we view the evidence in the light most
    favorable to the jury’s verdict, and the defendant no longer enjoys the presumption
    of innocence. Newsome v. State, 
    324 Ga. App. 665
    , 665 (751 SE2d 474) (2013). We
    neither weigh the evidence nor assess the credibility of the witnesses, but determine
    only whether the evidence authorized the jury to find the appellant guilty of the
    crimes charged beyond a reasonable doubt. Byrd v. State, 
    325 Ga. App. 24
    , 24 (752
    SE2d 84) (2013).
    The evidence shows that on May 18, 2010, Maria Smith left her job at 2:30
    p.m., ran a few errands, and then picked her sons up from school and daycare. At
    about 5:00 p.m., she drove to her mobile home in Summertown and remained in her
    truck, talking on her cell phone, while her oldest son went ahead into the mobile
    home. Her son ran back outside and told her that “somebody went in your house and
    tore up your room.” Maria Smith discovered that her air conditioning unit had been
    torn out of her window and several items were stolen, including jewelry and a video
    game system. Maria Smith then went to a cousin’s house to dial 911, and the sheriff’s
    office responded.
    Maria Smith testified that she saw Barney, Jonathan Smith, and Travoski Harris
    driving together on the road to Swainsboro the day after the burglary. Maria Smith
    had known Barney “all [her] life” because they grew up in the same neighborhood,
    and she believed he might be related to her. She also knew Jonathan Smith because
    he is her cousin. Barney and Jonathan Smith knew where she lived. The day after the
    2
    burglary, Barney called Maria Smith to tell her that he was not the person who had
    robbed her. Maria Smith thought this was unusual, explaining that he “ain’t never
    called me before.” He then called her a few more times for the same reason.
    Maria Smith lives next to another of her cousins, Marcus Sherrod. Sherrod was
    at work on the day of the crime when Maria Smith called to inform him that her
    mobile home had been burglarized. Sherrod called his father and asked him to stop
    by his mobile home, and he later found out that it had been burglarized as well.
    Sherrod’s air conditioning unit had been torn out of his window and several items had
    been stolen from his home, including guns and jewelry. Sherrod testified that, shortly
    before the burglary, Barney had called and asked him what he was doing and whether
    he was at work.
    Investigator Davis with the Emanuel County Sheriff’s Office responded to the
    scene of the burglaries. He went to both residences, interviewed Maria Smith and
    Sherrod, and took photos of their respective homes. Both Maria Smith and Sherrod
    mentioned that they thought Jonathan Smith might have been involved in the
    burglaries. The next day, Deputy Kersey initiated a traffic stop on a vehicle driven by
    Jonathan Smith. Harris and Jonathan Smith were also in the vehicle, as were tools that
    could have been used in the commission of the burglaries. When Jonathan Smith was
    3
    later interviewed by Investigator Davis, he made statements that he, Harris, and
    Barney were involved in the burglaries. He stated that Barney pushed in both air
    conditioning units and did not split the stolen items as agreed.
    Jonathan Smith also testified at trial that he, Harris, and Barney were
    responsible for the burglaries. He testified that he rode with Barney and Harris to a
    wooded area behind the two mobile homes. They approached Sherrod’s mobile home
    first. Jonathan Smith pushed in the window air-conditioning unit to enter the trailer
    and unlock the door for Barney. The two then stole guns from the mobile home. The
    men then went to Smith’s trailer, where they again pushed in the window air-
    conditioning unit to enter the home and stole jewelry and a videogame system. On
    cross-examination, Jonathan Smith stated that he did not remember telling the
    interviewing detectives that Barney had pushed in the air conditioning units. He
    explained that Barney had helped him push in the air conditioner at Maria Smith’s
    residence.
    Harris also testified at trial. When asked about the details of the crimes, Harris
    was reluctant to answer, stating “I am not in the mindset of going through this. I can’t
    do this. . . . I don’t remember the stuff. . . . I mean this is based on two years ago.”
    When asked to confirm that he had earlier pled guilty to the two burglaries without
    4
    a plea recommendation, Harris stated “I guess so. I don’t want to lie because I don’t
    want to be charged for perjury. . . . I have lied under oath before. . . . I’m scared. I
    don’t want to be charged with no perjury just because I lied, because I don’t want to
    go through that.” When pressed about earlier statements he made to the police and
    testimony made in earlier trials, Harris avoided the questions, stating, “I am putting
    all this behind me.” The State then received the trial court’s permission to treat Harris
    as a hostile witness and to ask him leading questions.
    Based upon Harris’s continued non-responsive answers, the trial court
    interrupted the testimony, sent the jurors out, summoned Harris’ attorney to the
    courtroom so that she could be present during the testimony, and instructed him that
    he could lose his first offender status if convicted of perjury. Harris then admitted that
    he had previously testified about the burglaries in an earlier court proceeding and
    confirmed that he, Jonathan Smith, and Barney had been involved in the burglaries
    of the two homes and had stolen guns, a video game console, and jewelry. He also
    testified, upon cross-examination, that he did not wish to change any statements made
    in the prior proceeding.
    1. Barney argues that the trial court committed plain error by failing to sua
    sponte instruct the jury that corroboration is required if the only evidence of guilt is
    5
    accomplice testimony under former OCGA § 24-4-8.1 Where, as here, no objection
    is made to a jury charge at trial, “appellate review for plain error is required whenever
    an appealing party properly asserts an error in jury instructions.” (Footnote omitted.)
    State v. Kelly, 
    290 Ga. 29
    , 32 (1) (718 SE2d 232) (2011).
    Under former OCGA § 24-4-8,
    The testimony of a single witness is generally sufficient to establish a
    fact. However, in certain cases, including . . . felony cases where the
    only witness is an accomplice, the testimony of a single witness shall not
    be sufficient. Nevertheless, corroborating circumstances may dispense
    with the necessity for the testimony of a second witness. . . .
    However, “as a rule, it is not error to fail to give a charge on corroboration of
    accomplices if the State relies upon other evidence from the accomplice’s testimony.”
    (Punctuation and footnote omitted.) Brown v. State, 
    321 Ga. App. 198
    , 200 (2) (739
    SE2d 118) (2013). “Slight evidence of defendant’s identity and participation from an
    extraneous source is all that is needed to corroborate an accomplice’s testimony.”
    (Citation and punctuation omitted.) Lane v. State, 
    324 Ga. App. 303
    , 311 (4) (b) (750
    1
    The provision in former OCGA § 24-4-8 has been carried forward into the
    new Evidence Code and re-numbered as OCGA § 24-14-8. Because the new Evidence
    Code became effective as of January 1, 2013, however, it does not apply to this case.
    Accordingly, we cite to the old Code section.
    6
    SE2d 381) (2013). “Corroborative evidence may be circumstantial and based on the
    testimony of other accomplices. And it does not have to be sufficient to warrant a
    conviction. Rather, the corroboration, which may include the defendant’s conduct
    before and after the crime, need only connect and identify the defendant with the
    crime.” (Citation omitted.) Sims v. State, 
    306 Ga. App. 68
    , 70-71 (1) (701 SE2d 534)
    (2010).
    Here, there was evidence to corroborate Jonathan Smith’s testimony as an
    accomplice. Although Harris was a reluctant witness at trial, his testimony revealed
    that Barney was involved with the crimes. Further, Sherrod testified that Barney
    called him before the burglary to ask if he was at home, and Maria Smith testified that
    Barney contacted her several times to let her know that he was not involved in the
    burglaries. She further testified that Barney was seen riding with his co-defendants
    the day after the burglary. See Brown, supra at 200-201 (2) (no plain error in failing
    to give accomplice corroboration charge when State relied on other evidence apart
    from accomplice’s testimony).
    2. Barney next argues that the evidence was insufficient to support his
    convictions because the accomplice testimony was uncorroborated. However, as
    noted above, the accomplice testimony of Jonathan Smith was corroborated by the
    7
    testimony of Harris, as well as by Barney’s calling the victims before and after the
    burglaries. We find no merit in this enumeration. See Crawford v. State, 
    294 Ga. 898
    ,
    901 (1) (757 SE2d 102) (2014) (Once the State adduces evidence which arguably
    corroborates the accomplice’s testimony, it is “peculiarly a matter for the jury to
    determine whether the evidence sufficiently corroborates the accomplice’s testimony
    and warrants a conviction”) (citations and punctuation omitted).
    3. Barney contends that his counsel rendered ineffective assistance by failing
    to request a jury charge on accomplice liability and in failing to cross-examine Harris
    and Jonathan Smith concerning alleged favorable sentencing terms they received in
    exchange for testimony against him.
    “In order to prevail on a claim of ineffective assistance of counsel, a convicted
    defendant must show that counsel performed deficiently and that the deficient
    performance prejudiced the defendant such that a reasonable probability exists that,
    but for counsel’s errors, the outcome of the trial would have been different.”
    (Footnote omitted.) Styles v. State, 
    329 Ga. App. 143
    , 151 (3) (764 SE2d 166) (2014).
    On review of the trial court’s ruling, “we accept the trial court’s factual findings and
    credibility determinations unless clearly erroneous, but we independently apply the
    8
    legal principles to the facts.” (Punctuation and footnote omitted.) White v. State, 
    308 Ga. App. 38
    , 43 (4) (706 SE2d 570) (2011).
    (a) Barney first contends that he received ineffective assistance of counsel
    when his counsel failed to request a jury charge on accomplice liability. He has
    abandoned this enumeration by failing to support it with either citations to the record
    or to legal authority. See Court of Appeals Rule 25 (c) (2). Even if such argument had
    been properly raised before this Court, however, it is without merit. At the motion for
    new trial hearing, Barney’s trial counsel testified that she did not request a charge for
    accomplice liability because “our theory was that he was not present for the
    burglary[.]” See Styles, supra at 151-152 (e) (trial counsel did not render ineffective
    assistance for failing to request a jury instruction on robbery by intimidation as a
    lesser included offense of armed robbery when defense strategy was that defendant
    had nothing to do with the crime). “Decisions as to which charges will be requested
    generally fall within the realm of trial tactics and strategy. . . [and] [a]s a general rule,
    matters of reasonable tactics and strategy, whether wise or unwise, do not amount to
    ineffective assistance of counsel.” (Punctuation and footnotes omitted.) White, supra
    at 44 (4). As Barney has failed to show that his trial counsel’s decision was not a
    reasonable trial strategy, we find no merit in this enumeration.
    9
    (b) Barney next asserts that his trial counsel was ineffective for failing to cross-
    examine Harris and Jonathan Smith concerning alleged favorable sentencing terms
    they received in exchange for their testimony against him. We find no error.
    At trial, both Harris and Jonathan Smith testified that they entered guilty pleas
    without a sentence recommendation from the State. Further, Barney presented no
    evidence at the motion for new trial hearing that either defendant received a favorable
    sentence because they agreed to cooperate with the State. Accordingly, we find that
    the record does not support the claim of ineffective assistance with respect to cross-
    examination of either Harris or Jonathan Smith. See Sears v. State, 
    292 Ga. 64
    , 72 (5)
    (3) (734 SE2d 345) (2012) (no ineffective assistance with respect to counsel’s cross-
    examination of an inmate who testified that defendant had confessed to committing
    the crime when defendant failed to produce any evidence that the inmate received a
    favorable sentence for cooperating with the State).
    Further, at the motion for new trial hearing, Barney’s trial counsel testified that
    she elected not to cross-examine Harris and Jonathan Smith about their sentences
    because both had testified that they pled guilty without a recommendation from the
    State regarding their sentences. She further explained that she chose to focus her
    cross-examination on the fact that both men admitted that they had lied in the past.
    10
    “Even though counsel is permitted to cross-examine thoroughly a testifying co-
    defendant about the terms of his plea agreement, it does not necessarily follow that
    counsel is ineffective for failing to do so.” (Footnote omitted.) Bonner v. State, 
    308 Ga. App. 827
    , 828 (1) (a) (709 SE2d 358) (2011). In the instant case, defense
    counsel’s decision not to question Harris and Jonathan Smith about their plea deals
    was tactical and strategic. “[T]actical decisions provide no grounds for reversal unless
    they are so patently unreasonable that no competent attorney would have chosen
    them.” (Punctuation and footnote omitted.) Id. at 828-829 (1) (a). Here, we cannot say
    that trial counsel’s failure to cross-examine the two men about their pleas was
    unreasonable. We find no merit in this enumeration.
    4. Barney argues that the trial court erred in concluding that the sentence
    originally imposed for the burglary convictions was void and, thus, that the trial court
    was without jurisdiction to grant the State’s motion for re-sentencing. We disagree.
    At the conclusion of trial, the trial court sentenced Barney as a recidivist2 to ten
    years as to the first burglary count and twenty years on the second burglary count,
    with five to serve in prison consecutive to the first count and fifteen to serve on
    probation. Almost a year later, the trial court held a re-sentencing hearing where the
    2
    Barney had three prior felony convictions.
    11
    State argued that the original sentence was illegal and void because, as a recidivist
    with three prior convictions, Barney should have been given the maximum sentence
    of 20 years without probation on each count, as required by OCGA § 17-10-7 (a) and
    (c). The trial court apparently agreed and re-sentenced Barney to twenty years to
    serve on each count to run concurrently with each other.
    Barney argues that, under OCGA § 17-10-7 (a), the trial court had the
    discretion to suspend or probate any portion of Barney’s sentence and, thus, that the
    original sentence was not void and could not be amended. See Brown v. State, 
    262 Ga. App. 659
    , 659 (586 SE2d 343) (2003) (“[T]he inherent power of a trial court to
    modify, suspend, or vacate a judgment ceases at the end of the term in which it was
    rendered. However, the trial court may correct a sentence the law does not allow at
    any time”) (citation omitted).
    Based upon his three prior felony convictions, Barney’s sentencing was
    governed by OCGA § 17-10-7 (a) and (c). OCGA § 17-10-7 (a) provides:
    . . . [A]ny person who, after having been convicted of a felony offense
    in this state . . . , commits a felony punishable by confinement in a penal
    institution shall be sentenced to undergo the longest period of time
    prescribed for the punishment of the subsequent offense of which he or
    she stands convicted, provided that, unless otherwise provided by law,
    12
    the trial judge may, in his or her discretion, probate or suspend the
    maximum sentence prescribed for the offense.
    OCGA § 17-10-7 (c) provides:
    ...[A]ny person who, after having been convicted ... for three felonies ...,
    commits a felony within this state shall, upon conviction for such fourth
    offense or for subsequent offenses, serve the maximum time provided
    in the sentence of the judge based upon such conviction and shall not be
    eligible for parole until the maximum sentence has been served.
    This Court has held that subsections (a) and (c) of OCGA § 17-10-7 must be read
    together. Jefferson v. State, 
    309 Ga. App. 861
    , 864 (2) (711 SE2d 412) (2011),
    overruled on other grounds by Maddox v. State, 
    322 Ga. App. 811
    , 815 (1) (746 SE2d
    280) (2013).
    We agree that the trial court’s initial sentence was void because it failed to
    comply with OCGA § 17-10-7 (a) and (c). Under OCGA § 17-10-7 (a), the trial court
    was required to impose a twenty year sentence for each burglary count, the longest
    sentence prescribed in the burglary statute, OCGA § 16-7-1 (b). This it did not do, as
    the trial court sentenced Barney merely to 10 years on Count 1. Accordingly, the trial
    court did not err in concluding that Barney’s original sentence was void and in
    amending the sentence to comply with OCGA § 17-10-7 (a) and (c). See Hill v. State,
    13
    
    272 Ga. App. 280
    , 281 (672 SE2d 92) (2005) (“trial court . . . did not err in correcting
    [defendant’s] sentence so that it complies with OCGA § 17-10-7 (c)”).
    We note, however, that although OCGA § 17-10-7 (c) “prohibits parole, it does
    not dispense with the trial court’s discretion to probate or suspend part of a sentence
    under OCGA § 17-10-7 (a).” (Citation and punctuation omitted.) Jefferson, supra.
    Therefore, to the extent that Barney argues that the trial court erred by failing to
    exercise its discretion to probate or suspend part of his sentence, if it so chooses, we
    agree. “Unless affirmative evidence shows otherwise, the trial court is presumed to
    have exercise its discretion in imposing [a] sentence.” (Punctuation and footnote
    omitted.) Cody v. State, 
    324 Ga. App. 815
    , 827 (5) (b) (752 SE2d 36) (2013). At the
    re-sentencing hearing, neither the trial court nor the State acknowledged that the trial
    court was vested with the discretion to probate or suspend a portion of Barney’s
    sentence. Further, the trial court agreed that it was going to impose the “least terrible
    [sentence] the [c]ourt can,” and sentenced Barney to twenty years without parole as
    to each burglary count, to be served concurrently. Thus, there is evidence that the trial
    court was confused as to its discretion to suspend or probate a portion of Barney’s
    sentence. “The trial court’s failure to exercise its discretion was error, which we
    cannot find harmless under these circumstances.” (Citation omitted.) Banks v. State,
    14
    
    225 Ga. App. 754
    , 756 (5) (225 SE2d 754) (1997). Compare Allen v. State, 
    325 Ga. App. 752
    , 753 (3), n. 2 (754 SE2d 795) (2014) (affirming sentence where trial court
    concluded that it was required to sentence defendant to maximum sentence without
    parole, and defendant “did not argue and the record did not reflect any error by the
    trial court with regard to its decision not to probate or suspend a portion of . . . [the]
    sentence.”). Accordingly, Barney’s sentence is vacated, and this case is remanded for
    resentencing in accordance with this opinion. The trial court has the authority to
    reimpose the sentence of 20 years to serve on each count, but must show on the
    record that it exercised its discretion in doing so. See Page v. State, 
    287 Ga. App. 182
    , 184 (3) (651 SE2d 131) (2007).
    Judgment of conviction affirmed, sentence vacated and case remanded for re-
    sentencing. Barnes, P. J., concurs. McMillian, J., concurs in judgment only as to
    Divisions 1 and 2, and concurs fully otherwise.
    15
    

Document Info

Docket Number: A15A1528

Citation Numbers: 333 Ga. App. 807, 777 S.E.2d 490

Judges: Ray, Barnes, McMillian, Divisions

Filed Date: 9/21/2015

Precedential Status: Precedential

Modified Date: 11/8/2024