Wallace v. the State , 335 Ga. App. 232 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, 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 16, 2015
In the Court of Appeals of Georgia
A15A0789. WALLACE v. THE STATE.
MILLER, Judge.
Following a jury trial, Nathaniel Wallace was convicted of a single count of
felony theft by shoplifting (OCGA § 16-8-14). Wallace appeals from the denial of his
motion for a new trial, contending that the trial court erred in improperly commenting
on the evidence at trial in violation of OCGA § 17-8-57; failing to charge the jury that
Wallace acted independently from his co-defendant; and admitting a store receipt as
evidence of felony-level value. Wallace also contends that his trial counsel was
ineffective. For the reasons that follow, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that on November 30, 2012, Wallace and his co-defendant, Shujuan Echols, went to
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
the Thornton Road Wal-Mart in Douglas County. Echols needed some things and told
Wallace that she was going to steal them. When they arrived at Wal-Mart, Wallace
and Echols each grabbed a buggy and began to “shop” for items. Eventually,
however, Echols placed her items in Wallace’s buggy. Wallace and Echols then
proceeded to the men’s department, where they were observed by a Wal-Mart security
officer. The officer became suspicious of Wallace and Echols because their buggy
had various items that were haphazardly thrown on top of each other.
After Wallace and Echols picked out items from the men’s department, they
walked to the front of the store where the cash registers were located. Echols walked
over to a closed cash register and grabbed some Wal-Mart bags, while Wallace stood
nearby and watched her. Wallace and Echols then left the cash register area, walked
toward the personal care aisle, and placed the items from their buggy into the Wal-
Mart bags. Echols looked over at Wallace and asked, “Are you ready[?]” Wallace
nodded, and responded, “Yeah.” Echols then started walking out of the store, while
Wallace followed her out with the buggy containing the bagged items.
When Wallace and Echols passed the store’s security system and entered the
vestibule, the security officer approached Wallace and told Wallace to follow him to
the store’s security office. Wallace left the buggy, said “here’s your stuff,” and
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walked out of the store with Echols.2 Wallace and Echols then got into their vehicle
and drove away.
The security officers then contacted the police, who stopped the vehicle and
arrested Wallace and Echols for shoplifting. Shortly after Wallace and Echols left the
store, the items that Wallace left in the buggy were scanned by a cashier, and the
printed receipt showed that the total value of those items came to $538.73.
1. Wallace contends that the trial court improperly commented on the evidence
in violation of OCGA § 17-8-57 when the trial court asked Echols about Wallace’s
nickname. We discern no error.
It is error for any judge in any criminal case, during its progress
or in his charge to the jury, to express or intimate his opinion as to what
has or has not been proved or as to the guilt of the accused. Should any
judge violate this Code section, the violation shall be held . . . to be
error[,] . . . the decision in the case reversed, and a new trial granted[.]
OCGA § 17-8-57 (2014). To constitute an improper comment under OCGA §
17-8-57, however, “the trial court’s statement must express an opinion about whether
the evidence has proven a material issue in the case, whether a witness was credible,
2
A backup officer approached Echols, who argued with him and she also
walked away.
3
or whether the defendant was guilty.” (Citation and punctuation omitted.) Artis v.
State, 299 Ga. App. 287, 290 (2) (682 SE2d 375) (2009).
At trial, when Echols was asked if she knew Wallace, the following colloquy
occurred:
STATE: Ms. Echols, do you know the defendant, in this case?
A: Yes.
STATE: Who do you know him as?
A: Crooked Finger Slim.
STATE: I’m sorry?
A: Crooked Finger Slim.
STATE: Do you know his real name?
A: Nathaniel Wallace.
COURT: Just a second. You know him as what? What name?
A: Slim.
COURT: Just Slim. S-L-I-M. Okay. I just couldn’t understand you, I’m sorry.
STATE: I thought you said something before Slim?
A: Oh, we call him Crooked Finger Slim.
STATE: Crooked Finger Slim.
COURT: Crooked Finger Slim. Okay. Thank you.
Contrary to Wallace’s argument, the trial court’s mere clarification of Echol’s
testimony did not constitute the type of direct comment on the substance or weight
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of the evidence that would violate OCGA § 17-8-57. See Alexander v. State, 294 Ga.
345, 348 (3) (751 SE2d 408) (2013) (trial court’s questions for purpose of clarifying
witness’s testimony did not violate OCGA § 17-8-57). Accordingly, this enumeration
is without merit.
2. Wallace contends that the trial court plainly erred in failing to charge the jury
that a misdemeanor conviction would be appropriate if it found that the value of the
stolen items attributable to him personally was less than $500. We disagree.
As an initial matter, the record shows that Wallace did not object to the trial
court’s charge. Where a defendant fails to object to a jury charge given by the trial
court, this Court will review the charge for plain error if the defendant properly
asserts an error on appeal. See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232)
(2011).
The plain error test authorizes reversal of a conviction if the
instruction was erroneous, the error was obvious, the instruction likely
affected the outcome of the proceedings, and the error seriously affected
the fairness, integrity or public reputation of judicial proceedings.
(Citations omitted.) Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).
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Here, the trial court instructed the jury that the indictment stated the exact
offense; the trial court sent the indictment out with the jury;3 and the trial court
charged the jury on the lesser offense of misdemeanor shoplifting, as well as felony
shoplifting. The trial court’s charge as given also sufficiently informed the jury of the
State’s burden of proof, reasonable doubt, and the law on parties to a crime. Viewing
the charge in its entirety, and the evidence showing that Wallace both directly
shoplifted items and was a party to the crime with regard to any items shoplifted by
Echols, Wallace has not shown any error, much less plain error, because he has not
shown that the failure to give an additional charge on misdemeanor shoplifting would
likely have affected the outcome of the proceedings. See Whiting v. State, 296 Ga.
429, 430-431 (2) (768 SE2d 448) (2015) (no reversible error – plain or otherwise –
with regard to jury charge where trial court read indictment to jury, and fully and
properly instructed on felony murder and parties to crime).
3. Wallace contends that the trial court erred in admitting the store receipt as
evidence of felony value. We do not agree.
3
The indictment charged Wallace with unlawfully taking possession of more
than $500 in food and clothing items from Wal-Mart with the intent of appropriating
those items to his own use, and without paying.
6
Under the new Evidence Rules,4 a business record is admissible as an exception
to the hearsay rule if: the record was made at or near the time of the described act; the
record was made by a person with personal knowledge and a business duty to report;
the record is admitted through the testimony of a qualified witness; the record was
kept in the course of a regularly conducted business activity; the record was made as
part of the store’s regular business activity; and the source of information or the
method or circumstances of preparation do not indicate a lack of trustworthiness. See
OCGA § 24-8-803 (6). We review the trial court’s ruling on the admission of
evidence for an abuse of discretion. See Egana v. HSBC Mortgage Corp., 294 Ga.
App. 456 (669 SE2d 159) (2008).
At trial, a security officer testified that after Wallace and Echols left the store,
he took the items in the cart to customer service and had them provide an itemized
receipt for all of the merchandise. After customer service provided the itemized
receipt, the officer retrieved the merchandise and the receipt and then compared them
to make sure that all of the merchandise was on the receipt. The officer identified the
itemized receipt at trial, and he confirmed that it listed all of the merchandise that
4
The jury trial in this case was conducted in November 2013, so Georgia’s new
Evidence Code applies. See Ga. L. 2011, p. 99, § 101.
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Wallace and Echols shoplifted from the store. The officer also confirmed that the pre-
tax total for all of the shoplifted items was $538.73.
Contrary to Wallace’s contention, the security officer was competent to testify
regarding the reliability and trustworthiness of the merchandise receipt because he
had personal knowledge of the store’s process for determining the value of shoplifted
items and he personally compared the merchandise in the cart to the items listed on
the receipt. Cf. Bell v. State, 262 Ga. App. 788, 789 (586 SE2d 455) (2003) (store’s
security agent’s testimony regarding value of stolen merchandise was admissible
because he had personal knowledge of merchandise’s retail price). Moreover, the
officer’s testimony sufficiently authenticated the receipt, which showed that Wallace
shoplifted more than $500 in merchandise, and the officer confirmed that the receipt
was created right after Wallace left the store. Finally, the officer’s testimony showed
that he followed the store’s normal course of business in having a cashier scan the
shoplifted items and then comparing the items to the itemized receipt to ensure that
the receipt accurately reflected the value of the stolen merchandise.
Under these circumstances, the trial court did not abuse its discretion in
admitting the merchandise receipt as a business record. Cf. Washington v. State, 285
Ga. 541 (678 SE2d 900) (2009) (trial court did not err in admitting phone records
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under former exception to hearsay rule where evidence showed that they were
maintained in computer storage as business records). Moreover, contrary to Wallace’s
argument, the officer’s testimony, combined with the value of the stolen merchandise
as shown on the receipt, was sufficient to establish felony value for purposes of
OCGA § 16-8-14 (b) (1). See Alford v. State, 292 Ga. App. 514, 516-517 (1) (c) (664
SE2d 870) (2008) (loss prevention officer’s testimony that defendant stole over
$1,000 in merchandise was sufficient to prove felony value under former OCGA §
16-8-14 (b) (1)).
4. Wallace contends that the trial court erred in failing to find that his trial
counsel was ineffective. We disagree.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and that
the deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. See Strickland v. Washington, 466 U. S.
668, 687 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to
meet his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong. In reviewing
the trial court’s decision, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. Furthermore, there
is a strong presumption that the performance of counsel was within the
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wide range of reasonable professional lawyering, and we cannot reach
a contrary conclusion unless defendant successfully rebuts the
presumption by clear and convincing evidence. Judicial scrutiny of
counsel’s performance must be highly deferential.
(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3)
(729 SE2d 442) (2012).
(a) Wallace argues that trial counsel should have challenged the security
officer’s testimony that the receipt for the items scanned by the cashier listed all of
the stolen merchandise. As set forth above in Division 3, the officer’s testimony,
combined with the value of the stolen merchandise as shown on the receipt, was
admissible and sufficient to establish felony value. Accordingly, any objection by trial
counsel would have been meritless and did not constitute ineffective assistance.
Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (failure to make
meritless objection is not evidence of ineffective assistance).
(b) Wallace contends that trial counsel was deficient for failing to object to the
trial court’s jury charge on misdemeanor shoplifting. As set forth above in Division
2, the trial court properly charged the jury on the State’s burden of proof, as well as
misdemeanor shoplifting. Accordingly, any objection would have been meritless and
trial counsel was not ineffective on this ground. See Hayes, supra, 262 Ga. at 884-885
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(3) (c). Moreover, Wallace cannot show prejudice because the State proved felony
value in this case.
(c) Wallace contends that his trial counsel was deficient for failing to object to
the admission of his convictions from 2000 and 2005 which were used to support his
ten-year recidivist sentence under OCGA § 17-10-7 (c). We disagree.
“The existence and validity of three prior felony convictions are necessary
predicates to the imposition of a recidivist sentence under OCGA § 17-10-7 (c).”
(Citation omitted.) von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).
Where a defendant challenges the State’s use of his prior felony guilty plea to impose
a recidivist sentence, the State’s initial burden is to prove only that the plea existed
and that the defendant was represented by counsel when he entered the plea. See Nash
v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999). Upon that showing, “the burden
shifts to the defendant “to produce some affirmative evidence showing an
infringement of his rights or a procedural irregularity in the taking of the plea.”
(Citation omitted) Id.The record shows that the State notified Wallace prior to trial that it intended
to use his prior convictions for recidivist sentencing purposes. The State’s notice
specifically included Wallace’s 1997 Cobb County conviction on his guilty plea to
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felony shoplifting, his 2001 Cobb County convictions on his guilty plea to two counts
of first degree forgery, and his 2006 Cobb County convictions on his guilty plea to
theft by taking and two counts of cocaine possession.
At Wallace’s sentencing hearing, the State offered proof of Wallace’s 1997,
2001 and 2006 Cobb County felony convictions by offering certified copies of those
convictions. The State also showed that Wallace was represented by counsel when
he entered his 1997, 2001 and 2006 guilty pleas to these felony crimes. Accordingly,
there is no evidence that these prior convictions were invalid or that Wallace’s guilty
pleas on these convictions were not freely and voluntarily made. Since, the State
proved at least three prior felony convictions for recidivist sentencing purposes, trial
counsel was not deficient for failing to object to the State’s mention of Wallace’s
2000 and 2005 convictions. See Hayes, supra, 262 Ga. at 884-885 (3) (c) (failure to
make a meritless objection does not constitute ineffective assistance). Consequently,
we affirm Wallace’s convictions and recidivist sentence.
Judgment affirmed. Andrews, P. J., and Branch, J., concur.
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