Sallee v. the State

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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 13, 2014
In the Court of Appeals of Georgia
A14A1439. SALLEE v. THE STATE.
MILLER, Judge.
Following a jury trial, Mark Thomas Sallee was convicted of one count of
insurance fraud (OCGA § 33-1-9).1 In an out-of-time appeal, Sallee appeals from the
denial of his motion for new trial, contending that (1) insufficient evidence supported
his conviction; (2) the trial court erred in denying his general and special demurrers
and his plea in abatement; (3) there was a fatal variance in the evidence; (4) the trial
court erred in denying his motion for a mistrial based on juror misconduct; (5) the
trial court improperly commented on the evidence; (6) Sallee was selectively and
vindictively prosecuted; (7) the trial court was biased; and (8) Sallee’s trial counsel
1
The jury acquitted Sallee of a second count of insurance fraud. Following his
conviction, attorney Sallee was disbarred.
was ineffective. This Court discerns no error. For the reasons that follow, we affirm
Sallee’s conviction.
Viewed in the light most favorable to the conviction,2 the evidence shows that
from 1995 to 2005, home builder John David Grice was married to Kim Grice Pack.
In 2005, Grice purchased a 25-acre lot in Cutcane Ridge subdivision in Mineral Bluff
for development and subsequently conveyed Lot 5 (“the Property”) to Pack. Pack
obtained a loan from Home Bank and Grice built a house on the Property. Pack also
obtained a builder’s risk insurance policy on the Property from Zurich Assurance
Company of America (“Zurich”).
In 2006, after Grice and Pack divorced, Pack entered into a sales contract to
sell the Property to Grice. On Friday, August 4, 2006, Pack sold the Property to Grice
for $180,000. Pack paid off her Home Bank loan and earned a profit of approximately
$15,000.3 Grice financed the purchase with a new loan from Home Bank, but he did
not obtain any insurance on the Property.
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
On August 16, 2006, Home Bank issued a cancellation and satisfaction,
noting that Pack’s 2005 loan had been paid in full.
2
Attorney Michael Birchmore, representing Home Bank, handled the closing.
At closing, Pack executed a warranty deed, Grice executed a security deed, and both
Pack and Grice signed a settlement statement.
Two days later, on August 6, 2006, a fire on the Property destroyed the house.
The next day, Grice told Birchmore about the fire and asked Birchmore to delay
recording the deed because Grice did not have insurance on the Property. In a letter
to Home Bank, Birchmore proposed recording the deed the following day and he sent
the documents to be recorded on August 8. The deeds, however, were not filed and
the original deed was lost. Shortly after the fire, Pack contacted Zurich to see if the
fire was covered by her builder’s risk policy but Zurich determined that Pack would
not be able to file a claim since she had sold the Property prior to the fire.
Grice retained Sallee to represent him in a malpractice claim against Birchmore
for failing to ensure that Grice had insurance on the property at the time of the sale.
Grice told Sallee that he had executed a security deed and Pack had executed a
warranty deed at the August 4, 2006 closing, and Pack had been paid approximately
$15,000. Sallee ultimately decided not to pursue any claims against Birchmore,
however, Sallee advised Grice to make a claim against Pack’s insurance policy
3
because the closing had not been completed and the deed to the Property, showing
that Grice was the owner, had not yet been recorded.
Grice and Sallee then approached Pack and told her that they had determined
that because the deeds had not been filed, Pack could file an insurance claim on the
Property. Grice offered Pack $5,000 for her part in filing the claim. In October 2007,
Sallee submitted an insurance claim to Zurich on Pack’s behalf.
In March 2008, Sallee filed a bad faith lawsuit against Zurich on Pack’s behalf.
Although Sallee knew that Pack had received approximately $15,000 at closing, he
told Zurich that Pack had not been paid for the sale of the property.
In December 2008, Sallee sent Pack a proof of loss statement to be filed with
Zurich, claiming a loss of approximately $118,000. Sallee told Pack that he had found
a loophole, the insurance claim was a windfall, and she could collect “free money”
because Birchmore had not handled the closing properly. On December 8, 2008, Pack
signed the proof of loss statement and Sallee submitted the statement to Zurich.
Pack later told Grice that she wanted to drop the claim because she had lied.
Nonetheless, in December 2008, Zurich issued a check for just under $118,000 to
Pack and Sallee. Sallee never told Pack that he had received the check and Pack never
signed the check. Sallee cashed the check but later returned approximately $77,000
4
to Zurich, saying that he could not disburse the funds. Sallee kept the remainder of
the money, approximately $40,000, as his fee.
The jury found Sallee guilty on one count of insurance fraud based on the
submission of Pack’s proof of loss statement.
1. Sallee contends that the evidence was insufficient to convict him of
insurance fraud because there was no evidence that he made any affirmative
misrepresentations, it was a matter of public record that Pack no longer owned the
property at the time of the fire, and the insurance company did not rely on any alleged
misrepresentation when paying Pack’s claim. We discern no error.
A person commits the crime of insurance fraud by making or aiding in the
making of a false or fraudulent written statement or representation of any material
fact or by filing a claim “for the purpose of procuring or attempting to procure the
payment of any false or fraudulent claim or other benefit by an insurer[.]” OCGA §
33-1-9 (a). Furthermore, “[e]very person concerned in the commission of a crime is
a party thereto and may be charged with and convicted of commission of the crime.”
OCGA § 16-2-20 (a). Although “mere presence at the scene of the commission of a
crime is not sufficient evidence to convict one of being a party thereto, presence,
companionship, and conduct before and after the offense are circumstances from
5
which one’s participation in the criminal intent may be inferred.” (Citations and
punctuation omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60)
(1991).
Pack’s interest in the property terminated when she sold it. See Roach v. Ga.
Farm Bureau Mu. Ins. Co., 173 Ga. App. 229, 230 (325 SE2d 797) (1984) (insured’s
interest in property terminates when property is sold). Nevertheless, Sallee
approached Pack after the sale and encouraged her to file an insurance claim on the
Property. Sallee knew that Pack’s loan on the Property had been paid off on August
4, 2006 at the closing but nonetheless filed Pack’s signed proof of loss statement with
Zurich on December 8, 2008, in which she falsely claimed a loss of approximately
$118,000 under her insurance policy.
While Sallee argues that there was no insurance fraud because an employee of
Zurich testified that Zurich did not rely on Sallee’s misrepresentations when it paid
Pack’s claim,4 reliance is not an element of criminal insurance fraud. “Rather, the
State must prove that the defendant made a false statement for the purpose of
procuring or attempting to procure payment of a false or fraudulent claim. Once a
4
A Zurich employee testified that the company “made a business decision” to
pay Pack’s claim because it was facing the bad faith lawsuit filed by Sallee.
6
defendant makes a false statement for such purpose, the crime is complete, and it is
irrelevant whether or not the claim is subsequently paid.” (Punctuation and footnote
omitted.) Callaway v. State, 247 Ga. App. 310, 314 (1) (b) (542 SE2d 596) (2000).
Thus, it matters not whether Zurich relied on Sallee’s misrepresentation in deciding
whether to pay Pack’s claim. Given the evidence set forth above, a jury was
authorized to conclude that Sallee aided Pack in making a false or fraudulent written
statement for the purpose of procuring or attempting to procure the payment of a false
claim, which was all that was required to convict Sallee of insurance fraud. See id.
2. Sallee contends that the trial court erred in denying his general and special
demurrers. We discern no error.
An accused may challenge the sufficiency of an indictment by
filing a general or special demurrer. A general demurrer challenges the
sufficiency of the substance of the indictment, whereas a special
demurrer challenges the sufficiency of the form of the indictment. An
indictment is sufficient to withstand a general demurrer if an accused
would be guilty of the crime charged if the facts as alleged in the
indictment are taken as true; however, if an accused can admit to all of
the facts charged in the indictment and still be innocent of a crime, the
indictment is insufficient and is subject to a general demurrer.
An indictment is sufficient to withstand a special demurrer if it contains
the elements of the offense intended to be charged, and sufficiently
7
apprises the defendant of what he must be prepared to meet, and, in case
any other proceedings are taken against him for a similar offense,
whether the record shows with accuracy to what extent he may plead a
former acquittal or conviction.
(Citations and punctuation omitted.) Raybon v. State, 309 Ga. App. 365, 366 (710
SE2d 579) (2011). We review a trial court’s ruling on a general or special demurrer
de novo in order to determine whether the allegations in the indictment are legally
sufficient. See State v. Marshall, 304 Ga. App. 865 (698 SE2d 337) (2010); see also
State v. Corhen, 306 Ga. App. 495, 501 (4) (700 SE2d 912) (2010).
As to Count 2, the indictment alleged that on December 8, 2008, in violation
of OCGA § 33-1-9, Sallee, Grice and Pack, individually and as parties concerned in
the commission of crime
knowingly [made] and [aided] in the making of a fraudulent
representation of material fact, to wit: Kim Grice [Pack] signed a Sworn
Proof of Loss Statement claiming she had a loss of $117,849.82, a
written statement, relating to a policy of insurance, for the purpose of
procuring the payment of a fraudulent claim by Zurich Insurance
Company[.]
(a) General demurrer.
8
Sallee contends that the indictment was defective because it failed to contain
all of the essential elements of insurance fraud, specifically, the fraudulent
representation of a material fact in violation of a specified penal statute. An
indictment is sufficient if “it states the offense in the statutory language or so plainly
that the nature of the offense may be understood by the jury and each of the named
defendants would be guilty of the crime charged if the facts as alleged in the count
are taken as true.” Corhen, supra, 306 Ga. App. at 501 (4); see also OCGA § 17-7-54
(a).
Here the indictment specifically charged Sallee in Count 2 of violating OCGA
§ 33-1-9 and further indicated, tracking the statute’s own language, that the
fraudulent misrepresentation was Pack’s statement that she had suffered a loss of
$117,849.82. Sallee would be guilty of insurance fraud if the facts alleged in the
indictment were taken as true. Accordingly, the indictment was sufficient to withstand
a general demurrer.5 See State v. Horsley, 310 Ga. App. 324, 325-326 (2) (714 SE2d
1) (2011) (reversing trial court’s grant of general demurrer where indictment tracked
the language of the applicable statute and plainly stated the allegations).
5
For the same reason, we reject Sallee’s contention that the trial court erred in
denying his plea in abatement because the indictment failed to allege a fraudulent
claim in violation of a specified penal statute.
9
(b) Special demurrer.
Sallee also contends that the trial court erred in denying his special demurrer
because the indictment did not identify a particular fraudulent claim. The indictment
specifically identified the fraudulent statement as Pack’s December 8, 2008 proof of
loss statement. The indictment was sufficient to withstand a special demurrer because
it stated the elements of the offense, apprised Sallee of the charges against him so that
he could prepare his defense, and protected Sallee against subsequent prosecutions
for the same offense. See State v. Marshall, 304 Ga. App. 865, 866 (698 SE2d 337)
(2010).
3. Sallee contends that there was a fatal variance in the evidence because the
indictment alleged that Sallee assisted Pack in making a fraudulent representation
when she signed the sworn proof of loss statement but the State argued at trial that
Sallee committed insurance fraud when he failed to correct Pack’s misstatement. We
do not agree.
Our courts have departed from an overly technical application of
the fatal variance rule, focusing instead on materiality. The true inquiry,
therefore, is not whether there has been a variance in proof, but whether
there has been such a variance as to affect the substantial rights of the
accused. It is the underlying reasons for the rule which must be served:
1) the allegations must definitely inform the accused as to the charges
10
against him so as to enable him to present his defense and not to be
taken by surprise, and 2) the allegations must be adequate to protect the
accused against another prosecution for the same offense. Only if the
allegations fail to meet these tests is the variance “fatal.”
(Citation omitted.) Hernandez v. State, 319 Ga. App. 876, 878 (1) (738 SE2d 701)
(2013).
Here, as discussed above, the indictment adequately apprised Sallee of the
charges against him, did not mislead him as to the charges he faced, and adequately
set forth the allegations in a manner to protect him against subsequent prosecutions
for the offense charged. See Hernandez, supra, 319 Ga. App. at 878 (1). Moreover,
the evidence adduced at trial was sufficient to sustain his conviction and consistent
with the allegations in the indictment. Specifically, the evidence showed that Sallee
assisted Pack in making an affirmative fraudulent representation when she signed the
sworn proof of loss statement claiming that she suffered a loss, when in fact she had
not. Accordingly, Sallee has not shown that a variance in the evidence, if any,
affected his substantial rights.
11
4. Sallee contends that the trial court erred in denying his motion for a mistrial
based on juror misconduct.6 We disagree.
“When irregular juror conduct is shown, there is a presumption of prejudice
to the defendant, and the prosecution carries the burden of establishing beyond a
reasonable doubt that no harm occurred. However, in order for juror misconduct to
upset a jury verdict, it must have been so prejudicial that the verdict is deemed
inherently lacking in due process.” (Punctuation and footnotes omitted.) Holcomb v.
State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). “The decision whether to remove
a juror from a panel lies within the sound discretion of the trial court and will not be
overturned absent an abuse of that discretion.” (Citation omitted.) Tolbert v. State,
300 Ga. App. 51, 53 (2) (684 SE2d 120) (2009). This Court also reviews the denial
of a mistrial for abuse of discretion. Watson v. State, 289 Ga. 39, 42 (7) (709 SE2d
2) (2011).
6
Sallee also contends that the trial court erred in not granting a mistrial based
on the fact that Sallee’s trial occurred before a local election, which Sallee argues
improperly influenced the jury. Sallee does not specify how the upcoming local
election affected the jury. Moreover, since Sallee did not seek a mistrial on this basis
at trial, he has waived the issue. “Where an entirely different objection or basis for
appeal is argued in the brief which was not presented at trial we will not consider that
basis as we are limited to those grounds presented to and ruled upon by the trial
court.” (Citation and punctuation omitted.) Godfrey v. State, 227 Ga. App. 576, 577
(2) (489 SE2d 364) (1997).
12
On the third day of Sallee’s trial, Juror M., a local attorney, shared with a
State’s witness, another local attorney, his thoughts on the case. The trial court
removed Juror M. from the jury and replaced him with an alternate. After individually
questioning the other jurors, who said that they had not heard any comments and
could remain fair and impartial, the trial court denied Sallee’s motion for a mistrial.
Replacing the juror who committed misconduct and then individually polling
the remaining jurors to ascertain that they could remain fair and impartial was an
adequate remedy and did not deprive Sallee of a fair trial. See Tolbert, supra, 300 Ga.
App. at 55 (2) (“Here, the trial judge thoroughly questioned each juror under oath
about what he or she said or heard, and whether he or she had the ability to remain a
fair and impartial juror and found that no [further] misconduct occurred and that each
[remaining] juror could remain impartial.”); see also OCGA § 15-12-172.
Accordingly, Sallee has not shown error in the denial of his motion for mistrial.
5. Sallee contends that the trial court improperly commented on the evidence
during Sallee’s cross-examination in violation of OCGA § 17-8-57. We do not agree.
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 by the . . .
13
Court of Appeals to be error and the decision in the case reversed, and
a new trial granted in the court below[.]
OCGA § 17-8-57. However, “[t]o constitute an improper comment under OCGA §
17-8-57, the trial court’s statement must express an opinion about a witness’s
credibility, whether the evidence has proven a material issue, or whether the
defendant is guilty.” (Citation and punctuation omitted.) Anthony v. State, 282 Ga.
App. 457, 458 (1) (638 SE2d 877) (2006).
“A trial judge may propound questions to a witness to develop the truth of the
case or to clarify testimony, and the extent of such an examination is a matter for the
trial court’s discretion.” (Citations omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a)
(685 SE2d 258) (2009). Moreover, “[a] trial court’s instruction to a defendant to give
responsive answers does not indicate an opinion as to either the defendant’s
credibility or his guilt or innocence.” (Citation omitted.) Anthony, supra, 282 Ga.
App. at 458 (1).
During Sallee’s cross-examination, the following exchange occurred:
STATE: Okay. Don’t you have a duty as an attorney if there is a
statement made to a third party that you later find out about, that you
have got to correct that?
14
SALLEE: There’s a duty if that is hidden. [The Birchmore] affidavit7
was a public record made –
COURT: The question was, do you have a duty to correct a
misstatement when you find out there has been a misstatement?
SALLEE: Not if it’s a matter of public record.
COURT: That’s not an answer to the question. Will you answer the
question?
SALLEE: I cannot answer the question as posed. I have a duty –
COURT: You’re saying you don’t have a duty to correct something that
you know that it’s wrong?
SALLEE: No. That’s not what I’m saying, your Honor.
COURT: What are you saying? That’s the question to you. You are a
lawyer. You found out there has been a misstatement. Don’t you as an
attorney have a duty to correct the misstatement?
SALLEE: I have a duty also to my client. I have a duty to my client. I
did not feel that was a misstatement. I have a duty to my client. Zurich
7
In October 2007, Birchmore prepared and recorded an affidavit setting forth
the facts related to the closing and attaching a copy of the original warranty deed.
15
at that time had agreed to make the claim. It was a public record. I did
not feel that it was a misstatement at that time.
Here, the trial court attempted to clarify Sallee’s testimony as to whether he had
a duty to correct a client’s misstatement, and, in so doing, it did not express an
opinion as to Sallee’s guilt or credibility. See Anthony, supra, 282 Ga. App. at 458 (1)
(no error where trial court directed defendant to answer the questions asked but
expressed no opinion as to whether defendant’s answers were truthful). Moreover, the
trial court cautioned the jury explicitly that “[b]y no ruling or comment which the
[trial court] has made during the progress of the trial has the [trial court] intended to
express any opinion upon the facts of this case, upon the credibility of the witnesses,
upon the evidence, or upon the guilt or innocence of the defendant.” Under these
circumstances, the trial court did not violate OCGA § 17-8-57. See Ellis v. State, 292
Ga. 276, 282 (3) (736 SE2d 412) (2013).
6. Sallee also contends that he was selectively and vindictively prosecuted
because he had previously represented criminal defendants in Fannin County. We
disagree.
Whether to prosecute and what charge to bring before a grand jury
are decisions that generally rest in the prosecutor’s discretion.
Nevertheless, selectivity in the enforcement of criminal laws is subject
16
to constitutional constraints, the equal protection clause of the
Fourteenth Amendment, while the due process clause of the Fourteenth
Amendment protects against vindictive exercise of the prosecutor’s
discretion. The conscious exercise of selectivity in enforcement is not
a federal constitutional violation if the selection is not deliberately based
upon unjustifiable standards, as race, religion or other arbitrary
classification. Pursuit of a course of action designed to penalize one’s
reliance on a legal right is patently unconstitutional. For this reason,
where there is actual or a realistic likelihood of vindictiveness in post
trial proceedings, a presumption of prosecutorial vindictiveness is said
to arise.
(Citations omitted.) Lee v. State, 177 Ga. App. 698, 700 (1) (340 SE2d 658) (1986).
Here, both Pack and Grice were also charged with insurance fraud, although they both
decided to testify truthfully in exchange for immunity. There is no evidence that
Sallee was prosecuted based on his race, religion, or other arbitrary classification.
Accordingly, there is no presumption of vindictive prosecution in this case. See Lee,
supra, 177 Ga. App. 700 (1). Consequently, Sallee’s claim fails.
7. Sallee also summarily contends that the trial court was biased. We disagree.
Prior to trial, all the judges of Fannin County Superior Court recused
themselves to avoid any appearance of impropriety. The Honorable Hugh Stone,
Senior Superior Court Judge, was assigned to try the case, and Sallee points to
17
nothing in the record as evidence of bias. Moreover, Sallee made no motion to recuse
Judge Stone and did not seek a mistrial based on any alleged bias. Consequently,
Sallee has failed to preserve this issue for appellate review. See Works v. State, 301
Ga. App. 108, 112 (3) (686 SE2d 863) (2009). “If [Sallee] was aware of a possible
basis for recusal, he had no right to sit back, hope for a favorable ruling or sentencing,
and then raise the issue for the first time in an amended motion for a new trial.”
(Footnote omitted.) English v. State, 290 Ga. App. 378, 381-382 (2) (659 SE2d 783)
(2008).
8. Sallee also contends that his trial counsel rendered ineffective assistance.
In order to prevail on a claim of ineffective assistance, [Sallee]
must show that counsel’s performance was deficient and that the
deficient performance so prejudiced [Sallee] that there is a reasonable
likelihood that, but for counsel’s errors, the outcome of the trial would
have been different. [Sallee] must overcome the strong presumption that
counsel’s conduct falls within the broad range of reasonable
professional conduct. In reviewing a lower court’s determination of a
claim of ineffective assistance of counsel, an appellate court gives
deference to the lower court’s factual findings, which are upheld unless
clearly erroneous; the lower court’s legal conclusions are reviewed de
novo.
18
(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619
SE2d 616) (2005). With these principles in mind, we turn to review Sallee’s claims.
(a) Sallee contends that his trial counsel was deficient in failing to object to the
trial court’s instruction that the Birchmore affidavit was admitted for the purpose of
showing Sallee’s knowledge of the conveyance when the affidavit was a public
record. We disagree.
The trial court instructed the jury, “Sometimes, things are admitted into
evidence for a limited purpose, and [the Birchmore affidavit] is admitted into
evidence on the question of the party’s knowledge, if any, of the transfer of title by
Kim Grice [Pack] to John David Grice. The affidavit itself does not convey and is not
a conveyance of any interest in property.” Here, Pack and Sallee testified that Sallee
was aware at the time he submitted the proof of loss to Zurich that the Property had
been conveyed to Grice prior to the fire. Consequently, even if trial counsel was
deficient in failing to object, there is no reasonable likelihood that the jury’s verdict
would have been different had trial counsel objected to the limiting instruction.
(b) Sallee contends that his trial counsel was deficient in failing to object to the
State’s closing argument that Sallee should be convicted based on his failure to
correct Pack’s misstatement. We discern no error.
19
The trial court repeatedly instructed the jury that the attorneys’ closing
arguments were not evidence, and “qualified jurors under oath are presumed to follow
the instructions of the trial court.” Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d
784) (2004). Given the trial court’s instruction, there is no reasonable probability that
the verdict would have been different but for trial counsel’s failure to object to the
State’s closing argument.
(c) Sallee contends that his trial counsel was deficient in failing to object to the
State’s questions during Sallee’s cross-examination. We disagree.
Specifically, Sallee contends that trial counsel was ineffective in failing to
object to the State’s questions as to whether Sallee had a duty to refrain from
counseling a client to engage in illegal conduct, whether Sallee had ever built a
house, how many houses he owned, and whether he had ever had a fire. Here, the
questions were not material and thus there is no reasonable probability that trial
counsel’s alleged deficiency impacted the verdict.
(d) Sallee also contends that his trial counsel was deficient in failing to object
and move for a mistrial based on the trial court’s questioning of Sallee regarding
whether Sallee was obligated to correct a client’s misstatement. As set forth above in
Division 5, the trial court made no improper comment on the evidence. “The failure
20
to pursue a futile objection does not amount to ineffective assistance.” Ventura v.
State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008). Therefore, trial counsel was not
deficient in failing to object.
(e) Sallee contends that trial counsel was ineffective in failing to request a
mistrial after the trial court admonished the jurors to pay attention to the proceedings
and removed the county sheriff from the courtroom. We discern no error.
(i) During trial, outside the presence of the jury, the State alerted the trial
court that the previously-discharged juror, Juror M., was sitting in the courtroom,
making eye contact with and possibly communicating with a current juror, Juror G.
The trial court instructed Juror M. not to communicate with or look toward the jury.
The trial court also asked Juror M. to move to a different area of the courtroom and
instructed the jury to pay attention to the testimony and not the audience. Later that
day, outside the presence of the jury, the State asked the trial court to determine
whether Juror M. had communicated with Juror G. The trial court then questioned
Juror G., who denied any communication. Juror G. remained on the jury.
Here, the trial court questioned Juror G. and determined that there had been no
juror misconduct. Thus, there was no necessity for a mistrial and a mistrial motion
would have been meritless. See Tolbert, supra, 300 Ga. App. at 55 (2) (no mistrial
21
required where jurors could remain fair and impartial). “That counsel did not pursue
a meritless motion cannot constitute a basis for a claim of ineffective assistance of
counsel.” (Citation omitted.) Leonard v. State, 292 Ga. 214, 217-218 (4) (735 SE2d
767) (2012).
(ii) After the trial court asked Juror M. to move to a different part of the
courtroom, two sheriff deputies stood by him. Trial counsel then asked the trial court
to remove the county sheriff from the courtroom because the sheriff had posted on
Facebook that Sallee, who was representing a client in an action against the sheriff,
was on trial for fraud. Outside of the jury’s presence, the trial court asked the sheriff
to leave the courtroom and the sheriff agreed to do so.
Here, the jury knew that Sallee was on trial for fraud. Moreover, Sallee has not
shown that the fact that the sheriff left the courtroom had any affect on the jury or that
but for counsel’s alleged deficiency, the result of the trial would have been different.
(f) Sallee contends that trial counsel was ineffective in failing to subpoena the
entire file from Zurich or interview Linda Meskis, a Zurich employee who had
worked on Pack’s claim. We disagree.
(i) At the hearing on Sallee’s new trial motion, trial counsel testified that
he did not subpoena the insurance file because he already had the file’s contents.
22
Since trial counsel had the file, he could not have been deficient in failing to
subpoena it.
(ii) As to Meskis, Sallee failed to make any proffer as to what Meskis
would have testified. Therefore, it is impossible for him to show that there is a
reasonable probability the results of the proceedings would have been different had
trial counsel interviewed Meskis. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615
(458 SE2d 623) (1995) (“The failure of trial counsel to employ evidence cannot be
deemed to be prejudicial in the absence of a showing that such evidence would have
been relevant and favorable to the defendant.”) (punctuation omitted).
(g) Sallee contends that trial counsel was ineffective in failing to request jury
charges explaining the reasonable reliance element of fraud. As set forth in Division
1 above, reasonable reliance is not an element of criminal fraud. Accordingly, trial
counsel could not have been ineffective for failing to request an incorrect statement
of law. See Leonard, supra, 292 Ga. at 217-218 (4) (counsel not required to make
meritless motions).
(h) Sallee also contends that trial counsel was ineffective in failing to request
a jury charge that attorneys are not subject to a different standard in applying criminal
laws. See Pope v. State, 179 Ga. App. 739, 743 (3) (347 SE2d 703) (1986) (“behavior
23
which might be unethical and might even subject an attorney to discipline by the State
Bar does not necessarily rise to the level of criminal conduct”). Here, the jury was
correctly instructed on the elements of insurance fraud and there is sufficient evidence
to support Sallee’s conviction for that crime. There were no special instructions
required and Sallee cannot substantiate his claim that his trial counsel was ineffective.
For all of the stated reasons, this case is affirmed.
Judgment affirmed. Doyle, P. J., and Dillard, J., concur.
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