Charles Keith Herring v. State ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, 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.
https://www.gaappeals.us/rules
April 20, 2022
In the Court of Appeals of Georgia
A22A0273. HERRING v. THE STATE.
PINSON, Judge.
Charles Keith Herring was convicted of sexual exploitation of a child for
possessing a digital image file of the uncovered genitals of his pre-pubescent
daughter. On appeal, he contends that (1) the trial court erred by admitting statements
he made to police after he invoked his right to remain silent; (2) the trial court erred
by denying his motion for directed verdict because the crime described in the
indictment varied from the proof offered at trial; and (3) his trial counsel rendered
ineffective assistance of counsel in several ways.
We affirm. The trial court correctly rejected Herring’s Miranda argument
because taken in context, the statements he relies on—”I’m done.... I want this done.
I want us to get through this. I want to find out who the F is doing this.”—did not
clearly and unambiguously invoke his right to remain silent. Herring’s indictment-
variance argument is moot because he was not sentenced on the count for which the
indictment allegedly varied from the proof at trial (that count was merged for
sentencing). And for reasons we discuss below, he has not met the heavy burden
required to establish that his counsel rendered constitutionally ineffective assistance.
Background
(a) Factual Background
Acting on a tip from Google, an investigator with the Georgia Bureau of
Investigation’s child exploitation and computer crimes unit obtained a search warrant
for Herring’s Google accounts. Google provided a trove of electronic information in
response. In addition to Herring’s resume, a recent tax return, and identifiable photos
of Herring, the data from his accounts included a digital image of a prepubescent
child’s vagina with a man’s penis slightly touching or penetrating it, and a second
digital image of a prepubescent child’s vagina in which it was apparent that the child
was wearing a red or pink shirt and was sitting or kneeling on colorful rug. Those two
photos were introduced at trial as State’s exhibits 1 and 2, respectively. Other photos,
similar to exhibit 2, showed more of the rug and other household items in the
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background. Those other photos were introduced as exhibits 3-20 and 23.
Investigators determined that all of the photos depicted the same child.
Investigators visited the home of Herring’s ex-girlfriend, J. F., where they saw
many of the same items that were visible in the photos. J. F. confirmed that the photos
were taken in her home and that the child in the photos was A. F., her daughter with
Herring. At the time the photos were taken, J. F. was no longer living with Herring,
but Herring would come to J. F.’s home once a week to watch A. F. while J. F. was
at work.
Based on this investigation, Herring was indicted on two counts of sexual
exploitation of children under OCGA § 16-12-100 (b) (for creating and possessing
the images in exhibits 1 and 2) and two counts of child molestation under OCGA
§ 16-6-4 (a) (for committing the acts depicted in the images in exhibits 1 and 2).
(b) Trial Proceedings
Before trial, Herring moved to exclude from evidence a portion of his interview
with police on the ground that his statements after a certain point were not voluntary
because he had told police he wanted the interview to stop. The trial court held a
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Jackson-Denno1 hearing to address the issue, during which the trial court read the
following relevant portion of the interview transcript:
THE COURT: All right, so I’m reading this and in context this is what
he says:
[HERRING:] Now, look, I’m done.
[OFFICER:] What do you mean you’re done?
[HERRING:] I want this done.
[OFFICER:] You want this done?
[HERRING:] I want this done. I want us to get through this. I want to
find out who the F is doing this.
The trial court found that, in that excerpt, Herring “essentially says he wants to
continue. He doesn’t say, I want to stop, I want to exercise my rights, I want to remain
silent, or I want a lawyer.” The trial court therefore found that Herring knowingly and
voluntarily waived his right to remain silent and voluntarily participated in the
interview.
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Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
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After the State rested, Herring moved for a directed verdict. Among other
things, Herring contended that Count One of the indictment was “in error” because
it did not match the offense charged: Count One described an image “depicting a
portion of a minor’s body engaged in physical contact in an act of apparent sexual
stimulation and gratification with the unclothed genitals of a prepubescent female”
(emphasis supplied), but the image that Herring was charged with possessing, exhibit
1, depicted an adult with a prepubescent female. Herring’s counsel asserted that she
had twice visited the offices of the prosecution in an attempt to determine what
photos her client was charged with possessing, but that the State never specified
which photo, of the “thousands of pictures” taken from Herring’s Google accounts,
corresponded to Count One. Rather, counsel was told only that “it’s in there.” The
trial court acknowledged it was a “close question,” but denied the motion, finding that
Herring “was sufficiently informed as to the charge against him, that he was able to
present his defense and that under these circumstances he was not taken by surprise
by the evidence presented at trial.”
Herring was convicted on Counts One and Two (sexual exploitation) and
acquitted on Counts Three and Four (child molestation). The sexual exploitation
counts were merged for sentencing, see Edvalson v. State, 310 Ga. 7, 10 (849 SE2d
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204) (2020) (holding that OCGA § 16-12-100 (b) “permits only one prosecution and
conviction for the simultaneous possession of multiple items of ‘visual media’”)
(footnote omitted), so Herring was sentenced only on Count Two. The trial court
imposed a sentence of 20 years, with the first 19 years to be served in prison. Herring
appealed.
Discussion
1. Under Miranda v. Arizona, 384 U. S. 436, 474 (III) (86 SCt 1602, 16 LEd2d
694) (1966), people in custody have a “right to cut off questioning.” But to invoke
that right, the person in custody must “clearly and unambiguously state[] that he
wants to end a custodial interrogation.” Causey v. State, 307 Ga. 147, 148 (2) (834
SE2d 857) (2019) (citing Berghuis v. Thompkins, 560 U. S. 370, 381-82 (III) (A) (130
SCt 2250, 176 LE2d 1098) (2010)). Without that clear statement, “a police officer is
under no obligation to clarify or to stop questioning.” Id. at 149 (2) (citations and
punctuation omitted).
Here, Herring contends that he invoked his right to remain silent during his
custodial interrogation when he told police, “Now, look, I’m done.” But we agree
with the trial court—whose factual findings and credibility determinations we accept
absent clear error, Cheley v. State, 299 Ga. 88, 90 (2) (786 SE2d 642) (2016)—that
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Herring did not clearly ask the police to stop questioning him. After Herring said
“[n]ow, look, I’m done,” the officer asked him to clarify, and Herring explained, “I
want this done. I want us to get through this. I want to find out who the F is doing
this.” As the trial court concluded, far from suggesting that he wanted to end the
interrogation right then, these statements indicated to the officers that he wanted to
continue the interrogation. So the trial court did not err in finding that Herring did not
unambiguously invoke his right to remain silent. See, e. g., Brown v. State, 304 Ga.
435, 440 (2) (b) (819 SE2d 14) (2018) (defendant who “repeatedly said he wanted to
finish the interview” did not unambiguously invoke his right to remain silent);
Cheley, 299 Ga. at 90-91 (2) (defendant who told police “I’m completely finished,”
but then continued answering questions, did not unambiguously invoke his right to
remain silent); Weaver v. State, 288 Ga. 540, 544 (4) (705 SE2d 627) (2011)
(defendant who told police, “I don’t want to say nothing. There’s just so much to
say,” did not unambiguously invoke his right to remain silent). Compare Mack v.
State, 296 Ga. 239, 240, 242-43 (1) (765 SE2d 896) (2014) (defendant who
repeatedly told police he was “done” and that he “[had] no more to say,” and who
stood up and told police, “let’s ride,” unambiguously invoked his right to remain
silent).
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2. Herring next contends that the trial court erred in denying his motion for a
directed verdict on Count One based on a fatal variance from the indictment. This
argument is moot because the conviction on Count One was merged for sentencing
and Herring was sentenced only on Count Two. See Cromartie v. State, 348 Ga. App.
563, 565 n.2 (1) (a) (824 SE2d 32) (2019) (trial court’s denial of a directed verdict
on one charge was moot because defendant was not sentenced on that count); Nelson
v. State, 224 Ga. App. 623, 624 (4) (481 SE2d 605) (1997) (same); see also Rosser
v. State, 308 Ga. 597, 599 (1) (842 SE2d 821) (2020) (holding that challenges to
sufficiency of evidence on several counts were moot because they were either vacated
by operation of law or merged into other counts for sentencing).
3. Herring also contends that his counsel was ineffective in several respects.
To prevail on a claim of ineffective assistance of counsel under the Sixth
Amendment, a defendant must establish both that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Stafford v. State,
312 Ga. 811, 819 (3) (a) (865 SE2d 116) (2021) (citing Strickland v. Washington, 466
U.S. 668, 687 (III) (104 SCt 2052, 80 LEd2d 674) (1984)). To establish deficient
performance, the defendant must demonstrate that counsel “performed at trial in an
objectively unreasonable way considering all the circumstances and in the light of
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prevailing professional norms.” Anthony v. State, 311 Ga. 293, 294-95 (1) (857 SE2d
682) (2021) (citation and punctuation omitted). There is a “‘strong presumption’” that
counsel acted reasonably, so the defendant must show that “‘no reasonable lawyer
would have done what his lawyer did, or would have failed to do what his lawyer did
not.’” Id. at 295 (1). And to show prejudice, the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Shelton v. State, ___ Ga. ___ (3) (b) (859 SE2d 377)
(2022) (citation and punctuation omitted). A reasonable probability is a probability
sufficient to “undermine confidence in the outcome.” Id. (citation and punctuation
omitted). We address each of Herring’s ineffectiveness arguments in turn.
(a) Herring first contends his counsel was ineffective for failing to file a speedy
trial demand. This claim fails. “Whether to file a demand for speedy trial is usually
a matter of trial tactics and strategy, as a delay in bringing the case to trial may work
to [the] defendant’s advantage.” Jones v. State, 296 Ga. 561, 569 (6) (769 SE2d 307)
(2015). And as with other strategic decisions, trial counsel’s decision to file, or not
file, a demand for speedy trial “should not be evaluated in hindsight.” Id. Accord
Napier v. State, 276 Ga. 769, 776 (8) (583 SE2d 825) (2003), disapproved on other
grounds by Shelton v. Lee, 299 Ga. 350, 355-56 (2) (b) (788 SE2d 369) (2016). Here,
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Herring offers no testimony from his trial counsel, nor any other type of evidence, to
overcome the presumption that his counsel’s failure to file a speedy trial demand was
a reasonable strategic decision. Nor does he show how the outcome of his trial might
have been different if counsel had demanded a speedy trial, as he must do to show
prejudice. See Henderson v. State, 310 Ga. 231, 243 (3) (a) (850 SE2d 152) (2020)
(defendant failed to show prejudice when he did not demonstrate “a reasonable
probability that had his counsel filed a proper speedy trial demand, his trial’s outcome
would have been different”) (emphasis in original).
(b) Herring argues his trial counsel was ineffective for failing to challenge the
State’s assertion that the photos in evidence were “actually downloaded and viewed
by Mr. Herring,” either by making an objection or by retaining an expert. But Herring
again points to no evidence to rebut the presumption that counsel’s decision not to
object or retain an expert was the product of reasonable trial strategy. See Brown v.
State, 356 Ga. App. 516, 524 (4) (848 SE2d 126) (2020) (performance of counsel
presumed to be “within the wide range of reasonable professional lawyering” unless
defendant rebuts the presumption by “clear and convincing evidence”) (citation
omitted). Nor does he offer any suggestion as to what an expert would have opined.
See White v. State, 293 Ga. 635, 636-37 (2) (748 SE2d 888) (2013) (defendant not
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prejudiced by counsel’s failure to retain expert when he offered no evidence as to
what the expert would have opined). And given the overwhelming evidence that
Herring possessed the photos—the photos were retrieved from Google accounts
associated with Herring that also contained Herring’s resume and tax returns and
photos of Herring —he cannot show that he was prejudiced by counsel’s decisions,
either. See Tucker v. State, 355 Ga. App. 796, 803 (4) (c) (845 SE2d 759) (2020)
(defendant not prejudiced by counsel’s failure to retain expert when evidence of guilt
was overwhelming); Turner v. State, 334 Ga. App. 515, 519 (2) (b) (778 SE2d 257)
(2015) (same).
(c) Herring next argues that his trial counsel’s case load of “between 230 and
250 felony cases” rendered her unable to render effective assistance. But Herring has
offered no evidence that his counsel’s case load affected the amount of time she
actually devoted to his case, see Whatley v. Terry, 284 Ga. 555, 561-62 (III) (668
SE2d 651) (2008) (declining to presume prejudice based on counsel’s heavy case load
because “it is the amount of time actually spent by [counsel] on [the defendant’s] case
that matters, not the number of other cases he might have had that potentially could
have taken his time”) (emphasis in original), much less that counsel’s case load
affected the outcome of the trial, see Wood v. State, 304 Ga. App. 52, 54-55 (3) (c)
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(695 SE2d 391) (2010) (rejecting claim of ineffective assistance based on counsel’s
heavy case load because defendant did not show a reasonable probability that jury
would have acquitted if counsel had more time to devote to her case). His claim of
ineffective assistance on this ground fails as well.
4. Finally, Herring contends that his prosecuting attorney was subject to a
conflict of interest because Herring’s first trial counsel left the public defender’s
office and joined the district attorney’s office. But Herring offers no evidence that his
former counsel personally participated in his prosecution; instead, he appears to argue
that the entire district attorney’s office should have been “disqualif[ied].” No
authority that we know of supports that position. A defendant “has the burden of
showing an actual conflict.” Johnson v. State, 320 Ga. App. 161, 165 (4) (739 SE2d
469) (2013) (emphasis supplied). The mere fact that Herring’s former counsel worked
for the district attorney’s office in some capacity is not enough to show an actual
conflict. See Lytle v. State, 290 Ga. 177, 179 (2) (718 SE2d 296) (2011) (defendant
did not demonstrate actual conflict when multiple co-indictees with adverse interests
were represented by the same public defender’s office).
Judgment affirmed. McFadden, P. J., and Gobeil, J., concur.
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