Shakrystin Brinae Brown v. State

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, 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 11, 2016
In the Court of Appeals of Georgia
A16A1091. RAY v. THE STATE DO-038 C
A16A1126. RANDELL v. THE STATE. DO-045 C
A16A1178. BROWN v. THE STATE. DO-044 C
DOYLE, Chief Judge.
Danterrell Dandre Ray, Alex Donavon Randell, and Shakrystin Brinae Brown
were each convicted of multiple offenses based on an armed robbery of a restaurant
and its occupants. They were indicted and tried jointly, and we have consolidated
their appeals for review.
In Case No. A16A1091, Ray appeals from his convictions on 43 counts (some
of which merged for sentencing) including multiple counts of armed robbery,1
1
OCGA § 16-8-41 (a).
kidnapping,2 false imprisonment,3 aggravated assault,4 possession of a weapon during
the commission of a crime,5 pointing a pistol at another,6 and theft by taking.7
Following the denial of his motion for new trial, Ray contends that the trial court
erred because (1) the evidence was insufficient to support the guilty verdict; (2) the
trial court failed to sever the trial or exclude post-arrest statements made by his co-
defendants; and (3) he received ineffective assistance of counsel.
In Case No. A16A1126, Randell appeals from his convictions on 43 counts for
the same offenses, some of which also merged at sentencing. Randell challenges the
denial of his motion for new trial on the grounds that (1) the evidence was insufficient
to support the verdict; (2) he received ineffective assistance of counsel; (3) the trial
court failed to sever the trial; and (4) the trial court erroneously allowed the State to
ask leading questions.
2
OCGA § 16-5-40 (a).
3
OCGA § 16-5-41 (a).
4
OCGA § 16-5-21 (b) (1).
5
OCGA § 16-11-106 (b) (1).
6
OCGA § 16-11-102.
7
OCGA § 16-8-2.
2
Finally, in Case No. A16A1178, Brown appeals from her convictions on 43
counts for the same offenses, some of which also merged at sentencing. Brown
challenges the denial of her motion for new trial on the grounds that (1) the
sentencing scheme for armed robbery is unconstitutional on its face and as applied
to her under Apprendi v. New Jersey;8 (2) the elements of knowledge and intent were
not properly charged nor was the evidence sufficient under Rosemond v. United
States;9 and (3) the evidence was insufficient to support the guilty verdict.
For the reasons that follow, we affirm the convictions in each case.
We begin with a general overview of the evidence presented at their joint trial.
Construed in favor of the verdicts,10 the evidence shows that in June 2012, Jonathan
Hammonds visited Ahkeem Simmons’s apartment and told Simmons about a robbery
that Hammonds was planning with Ray. Hammonds expected the robbery to yield
$70,000. A few days later, Hammonds, Ray, and Randell came by Simmons’s
8
530 U. S. 466, 490 (IV) (120 SCt 2348, 147 LE2d 435) (2000) (holding that
any fact, other than that of a prior conviction, that increases the penalty for a crime
beyond the statutory maximum must be submitted to a jury and proven beyond a
reasonable doubt).
9
__ U. S. __ (134 SCt 1240, 188 LE2d 248) (2014).
10
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
3
apartment, and Ray asked Simmons to participate in the robbery. Ray explained that
Brown was a hostess at the restaurant, and she had told him that the security cameras
did not work and had given him the location of the manager’s office where a
substantial amount of cash would be stored. Ray asked Simmons to drive the getaway
car, and Simmons agreed.
As the restaurant’s midnight closing time approached, Simmons drove Ray,
Randell, and Hammonds to the restaurant. They waited for Brown to call from within
the restaurant to tell them when the customers had left. As Brown completed her
closing duties, she ensured that the deadbolt on the front door remained unlocked. At
the appropriate time, Ray, Randell, and Hammonds parked at the restaurant and
exited their vehicle, all wearing black clothing and masks, with Ray carrying a
backpack. Two other friends, Brittany Patterson and Jazmine Washington, had driven
to the restaurant and parked outside to act as lookouts and to follow the getaway car
to screen it from police.
Ray, Randell, and Hammonds entered the restaurant through the front door, and
one pointed a gun at two workers, telling everyone to get down. The bartender
secretly tripped the silent alarm as she lay down, and one of the robbers stole $150
in cash and a cell phone from her at gunpoint. Another gunman tied up an employee
4
with zip ties or duct tape and took his wallet at gunpoint. A gunman also stole money
and a cell phone from another employee at gunpoint.
A third gunman went to the manager’s office and pointed a gun at the manager.
He forced her to open the safe, and he took the cash box located inside, also taking
the money in the manager’s purse and in the cash register. The gunman put all the
stolen money into a backpack he carried. The gunman then ordered the manager at
gunpoint to move from the office to the restaurant floor where the other employees
were located. Also in the course of the robbery, the dishwasher was moved at
gunpoint from the dishwashing area to the bar area floor, and his wallet was stolen
by a robber. Brown, who still was present, was not robbed.
Ray, Randell, and Hammonds then left the restaurant and fled in the waiting
cars driven by Simmons and Washington. As they drove to Simmons’s apartment,
Randell threw a stolen cell phone out of the window to avoid being tracked by police,
and Ray threw a second stolen cell phone into the woods upon arrival. With the help
of the phone’s owner, police later tracked the second phone’s location to the area of
Simmons’s apartment.
Everyone from the two cars gathered inside Simmons’s apartment to count the
money from the robbery. They were disappointed to find that instead of the $70,000
5
they expected, the had only stolen about $1,900. They divided the money between
Simmons, Ray, Randell, Hammonds, Patterson, and Washington.
After investigating the crime scene and interviewing witnesses, police learned
that Brown had left the front door unlocked and subpoenaed her cell phone records.
Those records eventually led to an interview with Patterson, who had been in one of
the vehicles during the robbery and who identified each of the perpetrators involved.
Washington also confirmed the same information to police. After searching the
vehicle driven by Simmons, police found a mask and bandana.
In a 52-count indictment, Brown, Randell, Simmons, Patterson, Washington,
Hammonds, and Ray were accused of committing multiple offenses against multiple
victims during their roles in the robbery. Ray unsuccessfully moved to sever his trial,
and after declining plea offers, the defendants were tried jointly before a jury. The
trial court directed not guilty verdicts as to seven counts, and the jury returned guilty
verdicts on the remaining counts. The trial court denied each defendant’s motion for
new trial, giving rise to these appeals.
Case No. A16A1091
1. Ray contends that the evidence was insufficient to support the guilty verdict
as to certain counts.
6
(a) Kidnapping. Ray first challenges two kidnapping counts. Citing Garza v.
State,11 Ray argues that the evidence failed to sufficiently demonstrate the asportation
element of kidnapping as to the manager and the dishwasher. We disagree.
Decided in 2008, Garza addressed the elements of kidnapping:
A person commits the offense of kidnapping when he abducts or steals
away any person without lawful authority or warrant and holds such
person against his will. Under [then] current Georgia jurisprudence, the
element of “abducting or stealing away” the victim, known in legal
parlance as “asportation,” [could] be established by proof of movement
of the victim, however slight.12
Garza abandoned the “slightness” threshold and instead adopted a four-part test to
distinguish a kidnapping from an incidental part of another offense such as a
robbery.13
11
284 Ga. 696 (670 SE2d 73) (2008), superseded by statute as stated in
Gonzalez v. Hart, 297 Ga. 670, 672 (777 SE2d 456) (2015). See also OCGA § 15-5-
40 (b) (2) (2009).
12
(Citation and punctuation omitted.) Id. at 697 (1), citing former OCGA § 16-
5-40 (a) (2008).
13
See id. at 702 (1) (Courts must “assess four factors in determining whether
the movement at issue constitutes asportation: (1) the duration of the movement; (2)
whether the movement occurred during the commission of a separate offense; (3)
whether such movement was an inherent part of that separate offense; and (4) whether
the movement itself presented a significant danger to the victim independent of the
7
Nevertheless, “Garza has been superseded by statute for offenses occurring
after July 1, 2009,”14 such as the ones here, which occurred in 2012. The current and
applicable statute reads as follows, in relevant part:
(a) A person commits the offense of kidnapping when such person
abducts or steals away another person without lawful authority or
warrant and holds such other person against his or her will.
(b) (1) For the offense of kidnapping to occur, slight movement
shall be sufficient; provided, however, that any such slight movement of
another person which occurs while in the commission of any other
offense shall not constitute the offense of kidnapping if such movement
is merely incidental to such other offense.
(2) Movement shall not be considered merely incidental to
another offense if it: (A) Conceals or isolates the victim; (B) Makes the
commission of the other offense substantially easier; (C) Lessens the
risk of detection; or (D) Is for the purpose of avoiding apprehension.15
The dishwasher was moved at gunpoint from the dishwashing area to the front
of the restaurant and ordered to lie down on the floor. Similarly, the manager was
danger posed by the separate offense.”)
14
Gonzalez, 297 Ga. at 672, n. 3. See Ga. L. 2009, p. 331.
15
(Emphasis supplied.) OCGA § 15-5-40.
8
moved at gunpoint from the manager’s officer to the front of the restaurant and
ordered to lie down on the floor. These movements were not merely incidental to the
armed robbery because they made the completion of the armed robbery substantially
easier by consolidating all of the restaurant occupants into one area and enhancing
the perpetrators’ control over the victims, thereby lessening the risk of detection and
apprehension due to a victim’s flight or attempt to contact police. Under these
circumstances, and according to the applicable statutory definition of kidnapping, the
evidence sufficed to support the kidnapping offenses as to the manager and
dishwasher.16
(b) False Imprisonment of C. G. Ray also contends that the State failed to prove
that he falsely imprisoned a certain victim, C. G., arguing that there was no evidence
that the victim was confined or detained against his will. Under OCGA § 16-5-41 (a)
“[a] person commits the offense of false imprisonment when, in violation of the
personal liberty of another, he arrests, confines, or detains such person without legal
authority.” Ray’s argument ignores the testimony of two other victims who stated that
16
See Ward v. State, 324 Ga. App. 230, 232-233 (1) (749 SE2d 812) (2013)
(movement from one room of a residence to another during a rape was sufficient to
constitute asportation).
9
the gunmen held C. G. at gunpoint, and he was not free to leave during the robbery.
When an appellate court reviews the sufficiency of the evidence,
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.
This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.
Once a defendant has been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.17
Based on the testimony from the other victims, Ray’s argument fails.
(c) Armed robbery of C. G. Ray also challenges the sufficiency of the evidence
as to armed robbery of C. G. Under OCGA § 16-8-41 (a), “[a] person commits the
offense of armed robbery when, with intent to commit theft, he or she takes property
of another from the person or the immediate presence of another by use of an
offensive weapon . . . .” Here, there was testimony from another victim that one of the
three gunmen pointed a gun at C. G. and took money from him. This was
17
(Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
10
corroborated by a second victim who saw a gunman point his gun at C. G. This
evidence sufficed to show that C. G. was a victim of armed robbery.18
With respect to the identity of the perpetrator of the robbery against C. G., we
note that
a participant to a crime may be convicted although he is not the person
who directly commits the crime. A person who intentionally aids or
abets in the commission of a crime or intentionally advises, encourages,
hires, counsels or procures another to commit the crime may be
convicted of the crime as a party to the crime. Mere presence at the
scene is not sufficient to convict one of being a party to a crime, but
criminal intent may be inferred from conduct before, during, and after
the commission of a crime. The question of whether [a defendant] was
a party to the armed robbery [is a question] for the jury to resolve.19
The evidence here showed that the three robbers wore masks to hide their
identities. But there was also evidence that Ray was one of the three masked men who
entered the restaurant to carry out the robbery and that Ray carried a pistol. Also, Ray
was one of the initial planners of the robbery, and he recruited Simmons to drive. Ray
18
See Odle v. State, 331 Ga. App. 146, 149-150 (1) (770 SE2d 256) (2015).
See also OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient
to establish a fact.”).
19
(Citations and punctuation omitted.) Hines v. State, 320 Ga. App. 854, 857
(1) (740 SE2d 786) (2013).
11
threw a stolen phone into the woods to conceal the crime and avoid detection by
police. Viewed in the light most favorable to the verdict, as is proper on appeal, this
evidence was sufficient to support a guilty verdict against Ray for the armed robbery
of C. G.20
2. Next, Ray contends that the trial court erred by failing to sever the trial or
exclude post-arrest statements made by his co-defendants. Ray filed a motion to sever
his trial, but the record does not reflect a particular ruling on his motion, and the trial
was not severed. Pretermitting whether Ray waived his request for severance, we
discern no reversible error.
Under OCGA § 17-8-4 (a), when multiple defendants are jointly “indicted for
. . . [felonies] less than capital, . . . such defendants may be tried jointly or separately
in the discretion of the trial court.”
It is incumbent upon the defendant who seeks a severance to show
clearly that the defendant will be prejudiced by a joint trial, and in the
absence of such a showing, the trial court’s denial of a severance motion
will not be disturbed. Factors to be considered by the trial court are:
whether a joint trial will create confusion of evidence and law; whether
there is a danger that evidence implicating one defendant will be
20
See id. at 858 (1) (a); Cantrell v. State, 230 Ga. App. 693, 695 (1) (498 SE2d
90) (1998).
12
considered against a co-defendant despite limiting instructions; and
whether the defendants are asserting antagonistic defenses. The burden
is on the defendant requesting the severance to do more than raise the
possibility that a separate trial would give him a better chance of
acquittal. He must make a clear showing of prejudice and a consequent
denial of due process.21
In the order denying Ray’s motion for new trial, the trial court found that the
defendants did not have antagonistic defenses because they all took the position that
they had no involvement in the robbery. None of the defendants on trial testified or
presented evidence, so there was no defense theory presented by a co-defendant that
was antagonistic to Ray’s defense. Other than making the general allegation that
Ray’s co-defendants’ defenses were antagonistic, he points to no specific evidence
inculpating him and exculpating another co-defendant. The same is true of Ray’s
general allegation that the evidence overwhelmed the jury. Rather, the evidence
showed that the defendants all played a role in a single robbery, not separate,
unrelated offenses that might muddy the evidence as to a single defendant’s
offenses.22
21
(Citation and punctuation omitted.) Daniel v. State, 285 Ga. 406, 407-408 (3)
(677 SE2d 120) (2009).
22
See id. at 408 (3) (a).
13
Ray also relies on Byrd v. Wainwright,23 to argue that he was deprived of the
benefit of his co-defendants’ testimony, who were entitled not to incriminate
themselves in their own trials. But Ray gives no specific showing or explanation of
what that testimony would have been.24 Further, there was strong evidence of Ray’s
participation in the robbery, and absent some other showing, Ray failed to
demonstrate prejudice showing an abuse of the trial court’s discretion in trying him
jointly.25
Ray finally relies on Bruton v. United States,26 to argue that his trial should not
have included hearsay statements by his co-defendants that incriminated him and that
he was denied his Sixth Amendment right to cross-examine those witnesses (who did
not actually testify). “As an initial matter, the statements in question were . . .
properly admitted under the co-conspirator exception to the hearsay rule.”27 There
23
428 F2d. 1017 (5th Cir. 1970).
24
See id. at 1020 (defendant must make a clear showing as to what the
co-defendant’s testimony would have been).
25
See Avellaneda v. State, 261 Ga. App. 83, 89 (581 SE2d 701) (2003).
26
391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968).
27
See Favors v. State, 296 Ga. 842, 844-845 (2) (770 SE2d 855) (2015);
OCGA § 24-8-801 (d) (2) (E) (admissions shall not be excluded by the hearsay rule,
and admissions include “statement[s] by a coconspirator of a party during the course
14
was independent evidence – testimony by Simmons that was subject to Ray’s cross-
examination – of Ray’s planning of and participation in the robbery with his co-
defendants.
As to the Confrontation Clause issue, a defendant’s Sixth Amendment
right to be confronted by the witnesses against him is violated under
Bruton when co-defendants are tried jointly and the testimonial
statement of a co-defendant who does not testify at trial is used to
implicate the other co-defendant in the crime. Bruton thus applies only
to out-of-court statements by non-testifying co-defendants that are
“testimonial” in nature. A statement is testimonial if its “primary
purpose was to establish evidence that could be used in a future
prosecution.” Here, [none] of the statements in question were
testimonial in nature[, because] . . . statements by a co-conspirator made
during and in furtherance of the conspiracy are not considered
“testimonial” and therefore do not require any constitutional scrutiny
under the Confrontation Clause.28
Accordingly, these statements were not a basis for severance of Ray’s trial.
3. Last, Ray contends that he received ineffective assistance of counsel. We
disagree.
and in furtherance of the conspiracy, including a statement made during the
concealment phase of a conspiracy.”).
28
(Citations and punctuation omitted.) Favors, 296 Ga. at 845 (2).
15
To establish that his trial counsel was constitutionally ineffective,
[Ray] was required to prove both deficient performance by counsel and
resulting prejudice. To prove deficient performance, [Ray] 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,
[Ray] must show that no reasonable lawyer would have done what 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
16
all, the burden of proving a denial of effective assistance of counsel is
a heavy one.29
(a) Failure to investigate case. Ray generally asserts that his trial counsel
performed deficiently by failing to adequately investigate the case and interview
witnesses. But he does not identify which witnesses his trial counsel should have
interviewed, what the interviews might have revealed that trial counsel did not
already know, or what evidence should have been investigated further. At the post-
trial hearing on Ray’s motion for new trial, his trial counsel testified that he was
unable to interview Ray’s co-defendants (who did not testify) because they were
represented by counsel.30 Ray has the burden of demonstrating how he was harmed
by his counsel’s deficient performance, and he has failed to do so.
(b) Failure to cross-examine witnesses. Ray also generally points to his trial
counsel’s failure to adequately cross-examine witness, but again, he does not identify
which witnesses should have been cross-examined or what such an examination
29
(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
(104 SCt 2052, 80 LE2d 674) (1984).
30
See Dixon v. State, 267 Ga. 136, 138 (2) (475 SE2d 633) (1996)
(unsuccessful attempt to interview witness was not deficient performance).
17
would have produced. At the post-trial hearing, Ray’s trial counsel testified that at the
joint trial, his “turn” was third in line, so the State’s witnesses had already been cross-
examined by counsel for Brown (who was thorough) and Hammond (who filled-in
gaps with follow-up questions). “[T]he scope of cross-examination is grounded in
trial tactics and strategy[] and will rarely constitute ineffective assistance of
counsel.”31 Based on the record before us, Ray has failed to meet his burden of
showing deficient performance on this ground.32
(c) Failure to sever. Ray argues that his trial counsel was ineffective by
abandoning his motion to sever. In light of our ruling in Division 2, this argument
fails because “the failure to make a meritless motion or objection does not provide a
basis upon which to find ineffective assistance of counsel.”33
Case No. A16A1126
4. Randell contends that the evidence was insufficient to support the guilty
verdict, conclusorily arguing that “the evidence presented was contrary to a
31
(Citation and punctuation omitted.) Cooper v. State, 281 Ga. 760, 762 (4) (a)
(642 SE2d 817) (2007).
32
See id.33
Hampton v. State, 295 Ga. 665, 670 (763 SE2d 467) (2014).
18
conviction . . . and [Randell] should have been acquitted on all counts.” This is belied
by testimony that Randell participated in the planning of the robbery, rode in the car
to the robbery, entered the restaurant with the other robbers, fled the scene with the
other robbers, threw a stolen cell phone out of the car window to avoid tracing, and
divided the spoils with the other robbers. Contrary to Randell’s argument, “[o]n
criminal appeal, appellant is no longer presumed innocent[,] and all of the evidence
is to be viewed in the light most favorable to the jury verdict. This Court does not
reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a
witness’s credibility is the responsibility of the factfinder, not this Court.”34 Viewed
properly, the evidence as a whole was sufficient to support the jury’s guilty verdict
as to Randell.
Randell also makes the same arguments as Ray as to certain offenses, and for
the reasons stated in Division 1, those arguments fail.
5. Randell next argues that he received ineffective assistance of counsel. His
burden on appeal is the same as stated in Division 3.
34
(Citations omitted) Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70)
(2014).
19
(a) Failure to object to leading questions. Randell argues that his trial counsel
performed deficiently by failing to object to multiple leading questions by the State.
At the motion for new trial hearing, Randell’s trial counsel testified that it is his
practice to object to some leading questions but not others, as he did in this case,
depending on the context and whether it helps his case: “It’s a judgment call.” “As
a general rule, matters of reasonable trial strategy and tactics do not amount to
ineffective assistance of counsel. An attorney’s decision to forego objecting to
hearsay or to leading questions used to establish routine points constitutes reasonable
trial strategy.”35 Based on the record before us, Randell has failed to meet his burden
under Strickland on this ground.
(b) Failure to request discovery or interview witnesses. Randell challenges his
trial counsel’s decision not to opt-in to discovery and his failure to interview any
witnesses. This is belied by the transcript of the post-trial hearing, which contains
testimony by Randell’s counsel explaining that as part of his pre-trial investigation
he was provided with the State’s entire file and information on any deals they made
with the State. Further, Randell’s trial counsel testified that he did interview multiple
35
(Citation and punctuation omitted.) Williams v. State, 282 Ga. 561, 564 (5)
(a) (651 SE2d 674) (2007).
20
police witnesses during his investigation and that he spoke to the attorneys of the
other defendants. Based on this record, Randell has not demonstrated deficient
performance.36
(c) Failure to sever. Like Ray, Randell asserts that his counsel was ineffective
by failing to move to sever his trial from that of his co-defendants. Nevertheless, his
trial counsel explained that this decision was a strategic one hinging on a defense
strategy – that cell phone records would exonerate his client – that ultimately failed
to come to fruition. Further, as we explained in Division 2, trying the co-defendants
jointly, despite a pending motion to sever filed by Ray, was within the trial court’s
discretion, so Randell cannot demonstrate that he was harmed on this basis.
(d) Failure to request jury instruction. Last, Randell argues that his trial
counsel performed deficiently by failing to request the following jury charge:
“Though you may consider all of the evidence as a whole, conviction of one
defendant does not necessarily require conviction of another (or all). You, the jury,
must determine the guilt or innocence of each defendant separately.” The transcript
36
See Thompson v. State, 203 Ga. App. 339 (2) (416 SE2d 755) (1992) (relying
on informal process to obtain discovery materials from State was not ineffective
assistance of counsel).
21
reveals that the trial court gave this instruction nearly verbatim. Accordingly, this
argument fails.
6. Randell also challenges the trial court’s failure to sever the trial. For the
reasons stated in Division 2, this enumeration is without merit.
7. Finally, Randell argues that the trial court erroneously allowed the State to
ask leading questions.
Leading questions generally are allowed only on cross-examination.
However, the trial court has the discretion to allow leading questions on
direct examination, where, for example, the witness is nervous, or
ignorant, or hostile. It would be a rare case in which the trial court’s
exercise of discretion on this issue would warrant reversal.37
Here, certain leading questions were not challenged by counsel, so the trial
“court’s discretion was not even invoked,”38 and as ruled in Division 5 (a), those
questions do not support an ineffective assistance of counsel claim. As to other
questions that were challenged, the trial court sustained some of the objections made
by defense counsel, and Randell points to no specific objection that was erroneously
37
(Citations omitted.) Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104)
(1993).
38
Id. at 265-266 (10).
22
overruled. We note that two of the three witnesses at issue were testifying with an
interpreter, and “allowing leading questions where there is a language barrier” is not
an abuse of discretion.39 Based on Randell’s lack of specific objections at trial, and
his trial counsel’s responses with respect to his ineffective assistance of counsel
claim, we discern no reversible error.
Case No. A16A1178
8. Brown, the restaurant employee who was also convicted of participating in
the robbery, urges that her sentence was unconstitutional as applied and on its
face. She was found guilty of 43 counts based on the robbery, including multiple
counts of armed robbery, kidnapping, false imprisonment, possession of a firearm
during the commission of a felony, aggravated assault, pointing a pistol at another,
and theft by taking. She was sentenced to two consecutive life sentences with the
possibility of parole, with the remainder of her confinement concurrent to the life
sentences.40
39
Dumas v. State, 283 Ga. App. 279, 282 (3) (641 SE2d 271) (2007).
40
For the reasons discussed below, we pretermit whether Brown made a timely
objection to her sentence or whether her trial counsel was ineffective for not doing
so.
23
(a) Apprendi challenge. Specifically, Brown challenges the two life sentences
she received for armed robbery under OCGA § 16-8-41 (b), which provides that “[a]
person convicted of the offense of armed robbery shall be punished by death or
imprisonment for life or by imprisonment for not less than ten nor more than 20
years.” She asserts that this scheme is unconstitutional under the precedent
established by Apprendi, which stands for the proposition that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”41 Because the sentence at issue was within the statutory maximum
and did not extend Brown’s punnishment beyond the prescribed range supported by
the jury’s verdict, “Apprendi simply does not apply to this sentencing scheme.”42
(b) Vagueness challenge. Brown also argues that her sentence was improper
based on the vagueness of OCGA § 16-8-41 (b) as to when a life sentence might
41
(Emphasis supplied.) Apprendi, 530 U.S. at 474 (II), 490 (IV) (specifically
addressing “whether the 12-year sentence imposed . . . was permissible, given that it
was above the 10-year maximum for the offense charged in that count”).
42
Babbage v. State, 296 Ga. 364, 368 (2) (b) (768 SE2d 461) (2015). See also
Burke v. State, 274 Ga. App. 402, 404 (1) (618 SE2d 36) (2005).
24
apply versus a ten-to-twenty year sentence. But this Court has explained that the
sentencing structure is not unconstitutionally vague:
Although the statute allows the sentencing judge broad discretion, it
does not provide two different maximum sentences and is not
unconstitutionally vague. The courts of this state have consistently held
that the maximum penalty upon conviction for armed robbery is life
imprisonment. As an alternative to imposing this maximum sentence,
under OCGA § 16-8-41 (b), a court also has the discretion to impose a
determinate sentence of any period of time between five and twenty
years.43
Therefore, Brown’s arguments based on the vagueness of OCGA § 16-8-41 (b) are
without merit.
(c) Eighth Amendment challenge. Brown argues that her sentence violated the
U. S. and Georgia Constitutions’ prohibitions against cruel and unusual punishment.
As stated above, Brown’s sentence was within the range prescribed by the statute.
[A] presumption arises when a defendant is sentenced within the
statutory limits set by the legislature that such sentence does not violate
the Eighth Amendment’s guarantee against cruel and unusual
punishment. Such presumption remains until a defendant sets forth a
43
(Punctuation omitted.) Hudson v. State, 334 Ga. App. 166, 168 (2) (778 SE2d
406) (2015), quoting Corey v. State, 216 Ga. App. 180, 180-181 (454 SE2d 154)
(1995).
25
factual predicate showing that such legislatively authorized punishment
was so overly severe or excessive in proportion to the offense as to
shock the conscience.44
[I]n order to determine if a sentence is grossly disproportionate, a court
must first examine the “gravity of the offense compared to the harshness
of the penalty” and determine whether a threshold inference of gross
disproportionality is raised. In making this determination, courts must
bear in mind the primacy of the legislature in setting punishment and
seek to determine whether the sentence furthers a “legitimate
penological goal” considering the offense and the offender in question.
If a sentence does not further a legitimate penological goal, it does not
“reflect a rational legislative judgment, entitled to deference,” and a
threshold showing of disproportionality has been made. If this threshold
analysis reveals an inference of gross disproportionality, a court must
proceed to the second step and determine whether the initial judgment
of disproportionality is confirmed by a comparison of the defendant’s
sentence to sentences imposed for other crimes within the jurisdiction
and for the same crime in other jurisdictions.45
Here, the trial court explained at the sentencing hearing that the crime “would
not have happened without” Brown’s participation. Brown worked at the restaurant
44
(Punctuation omitted.) McKenzie v. State, 302 Ga. App. 538, 541 (2) (691
SE2d 352) (2010).
45
(Footnotes omitted.) Humphrey v. Wilson, 282 Ga. 520, 525 (3) (a) (652
SE2d 501) (2007).
26
and had noticed the potential for a large amount of cash to be handled at the end of
the day and that the security cameras did not work. More importantly, Brown left the
front door of the restaurant unlocked after hours, contrary to the restaurant’s policy
of locking the door during closing. The trial court also noted the effect on each of the
multiple victims in the restaurant who had guns “to their heads and backs” not
knowing “whether they would live or die,” as well as the ripple effect on the
community such that “you can’t go into a restaurant without wondering . . . what’s
going to happen.” The court also considered the punitive effect of a harsh sentence,
as well as ensuring that “the rest of us will be safe from you.” Last, the court noted
that Brown’s conduct was “perhaps even worse” than her co-defendants because the
victims were her co-workers and friends, and Brown was the one who deliberately
allowed three masked gunmen to enter and rob the victims at gunpoint.
In light of all of these factors, as well as the statutory sentencing scheme and
Brown’s eventual eligibility for parole, Brown has not overcome the presumption that
her sentence did not violate the Eighth Amendment’s guarantee against cruel and
unusual punishment.46
46
See Windhom v. State, 326 Ga. App. 212, 216 (5) (756 SE2d 296) (2014).
27
9. Brown also argues that the State failed to prove her accomplice liability
under Rosemond47 for the offenses involving firearms. That case “held that, under the
federal aiding and abetting statute,48 a person may be convicted of aiding and abetting
the federal crime of using or carrying a firearm in connection with a drug trafficking
crime,49 only if [s]he had advance knowledge that a co-defendant would use or carry
a firearm.”50 Pretermitting whether the evidence showed Brown’s knowledge that her
co-defendants would be armed, “[t]hat case arose under federal law [addressing a
different criminal statute,] and thus does not control here.” Thus, “although [Brown]
argues that pursuant to Rosemond . . . a defendant must know in advance that [her]
companion is armed because the defendant must intend to commit each element of the
crime rather than a single component of it, our Supreme Court already has
47
__ U. S. at __ (134 SCt 1240; 188 LE2d 248) (2014).
48
See 18 USC § 2.
49
See 18 USC § 924 (c).
50
Hicks v. State, 295 Ga. 268, 273, n. 3 (1) (759 SE2d 509) (2014).
28
distinguished and declined to follow Rosemond.”51 Accordingly, this enumeration is
without merit.
10. Finally, Brown argues that the evidence was insufficient to support the
verdict as to the kidnapping, false imprisonment, and armed robbery counts addressed
in Division 1. For the reasons discussed in that division, this enumeration fails.
Judgments affirmed. Andrews, P. J. and Ray, J., concur.
51
Boccia v. State, 335 Ga. App. 687, 698-699 (5) (782 SE2d 792) (2016),
citing Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858) (2003) (prosecution is
not required to prove defendant knew that co-defendant intended to use a gun; the
only proof required was that defendant was part of a conspiracy to rob and
co-defendant’s “use of the weapon by the accomplice was naturally and necessarily
done in furtherance of that crime”).
29