author: Phipps, Chief Judge.

text:
    A13A0553.
    HUGHES v. THE STATE.
    (746 SE2d 648)
   Phipps, Chief Judge.

John Lorenzo Hughes was convicted of hijacking a motor vehicle, armed robbery, attempted kidnapping, obstruction, and marijuana possession. Pro se on appeal, Hughes challenges the sufficiency of the evidence as to each offense; he also contends that the trial court erred by denying his request to charge the jury on accident, by denying his request to continue the hearing on his motion for new trial, and by rejecting his claims of ineffective assistance of counsel. We affirm.

1. When an appellant challenges the sufficiency of the evidence to support the conviction, “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.”

So viewed, the state’s evidence showed the following. At about 1:00 a.m. on November 20, 2010, a lone driver stopped her BMW at a red light. Hughes quickly approached the car, opened its passenger door, sat down in the front passenger seat, grabbed the woman’s purse, put it on his lap, then told her: “Drive or die.” The woman saw that Hughes had in his hand a sock, which was covering an object; Hughes was pointing the sock-covered object at her. The object was later revealed to be a large rock, but the woman discerned it at the time to be a gun. Hughes repeatedly threatened the woman that, if she did not cooperate with him, she would die.

The driver fled the car on foot and ran to a nearby gas station parking lot. Hughes slid into the driver’s seat. Then, the woman later testified, “I heard the gears scraping and scrubbing as if he did not know how to drive [my] six-speed vehicle,” describing the car also as a “stick shift.” The vehicle coasted into the middle of the intersection, then stopped.

Meanwhile, a marked police cruiser approached the intersection and stopped at the red light. The patrolling officers noted the BMW proceeding slowing through the red light, then stopping in the middle of the intersection; they saw a woman pointing at the BMW and heard her yelling for help and screaming that the man in the BMW had robbed her, taken her car, and tried to kidnap her. The officer driving the patrol car activated its blue lights. Hughes looked up with a startled expression on his face, immediately exited the vehicle, then fled the scene on foot, while holding the woman’s purse in his hand. The uniformed police officers chased Hughes on foot, repeatedly commanding Hughes to halt. Hughes dropped the victim’s purse, but continued to run until apprehended by police. During a search incident to arrest, police found marijuana in Hughes’s pocket.

When initially taken to j ail, Hughes was not accepted for booking because he complained of experiencing blurred vision, which he attributed to having been attacked earlier that night by several males. The arresting officer saw no injuries on Hughes, but transported him to a hospital where he was examined by a doctor. Medically cleared, Hughes was returned to jail and booked.

Hughes was the sole witness for the defense. He testified that, shortly after midnight on the night in question, he went to an apartment building that was in the vicinity of the intersection to conduct a drug transaction. As he was leaving the apartment building, he was struck on the head by a male, and the two of them began fighting. Hughes recounted that several other individuals aided his opponent, and he (Hughes) was struck multiple times in the head and kicked on the sides of his body. Hughes escaped his attackers, and in running away, encountered the BMW stopped at the red light. He testified, “I recall jumping in. And in that state of mind I could have said, ‘Drive.’ But what I implied to her wasn’t that I would kill her, per se, but more of, if we stay here, bad things might happen.” Hughes testified that he asked the driver repeatedly to drive him away from that neighborhood, while he continued “looking around for these individuals. When I spot[ted] them, I admit I might have screamed at her and called her a name and told her to drive. I’m not going to deny that I did that because, like I said, I was scared for my life at that point.” Hughes testified that he never threatened that he would harm the driver, asserting, “[M]y implication was that something could happen to us if we stayed there— I think what I said was more along the lines of, drive or we might die or we’re going to die.” Hughes claimed at trial that he had not had a rock in a sock and that he had told the driver that he wanted neither her car nor her money. Yet, she fled the car. And the car began rolling into the intersection. So he slid into the driver’s seat to stop the car, but did not know how to operate its manual transmission.

Hughes was asked why, if he was afraid for his life because of pursuing attackers, he had run away from the police when they arrived; he answered that he had panicked because he had drugs in his possession. Hughes was asked to explain why, if he did not want the woman’s money, he had taken with him her purse; he answered that, as he was sliding into the driver’s seat, his foot became entangled with the shoulder strap of the purse and that “when I went to run, I tripped. I bent down. I picked the purse up and ran and threw the purse down.”

Hughes recounted that, after he was arrested, he asked a police officer to tell the woman he was sorry. As Hughes put it at trial, “I was manning up to entering her auto without her consent and scaring her.” Hughes further recounted that he underwent testing at a hospital before being booked into jail at about 5:00 that same morning. And at trial, Hughes testified that his booking photograph depicted bruises on his head, which photograph was presented to the jury.

On appeal, Hughes claims that the state’s case contained weaknesses and was contradicted by his testimony, mandating a reversal of his convictions.

But any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even though contra-dieted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

More specifically, Hughes has demonstrated no basis for disturbing the jury’s findings that he was guilty as charged of: (i) hijacking a motor vehicle, by obtaining a motor vehicle from another person by use of force and intimidation; (ii) armed robbery, by taking a purse and a car from another person by use of an offensive weapon (a rock in a sock); (iii) criminal attempt to commit kidnapping, by knowingly and intentionally performing an act which constituted a substantial step toward the commission of said crime, by entering an occupied motor vehicle and commanding the driver to “Drive or die,” while wielding a rock in a sock; (iv) obstruction, by fleeing and thereby knowingly and willfully hindering police officers in the lawful discharge of their official duties; and (v) violation of the Georgia Controlled Substances Act, by possessing marijuana.

2. Hughes contends that the trial court erred when it declined to charge the jury on the law of accident, which he maintains constituted his sole defense and was authorized by his testimony about that night’s events. “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.”

Pursuant to OCGA § 16-2-2, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” As the Supreme Court of Georgia has explained,

“[Ajccident” is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby.

Contrary to Hughes’s claim, his testimony did not authorize a charge on accident. According to Hughes’s version of relevant events, Hughes determined to use a passing BMW as his getaway vehicle from his drug deal gone bad. He thus admittedly entered a stranger’s car without the driver’s consent, frightened her, knowingly placed her life in danger of his pursuing attackers; threatened her that she would be harmed if she did not comply with his demands; and repeatedly ordered her to drive him away, irrespective of her pleas and protest. Hughes’s words and acts induced the driver to abandon possession of her vehicle and her purse and to flee on foot because of fear for her personal safety. Hughes testified that he then slid into the driver’s seat; but upon realizing that police had arrived, he fled pursuing officers because he knew he had drugs on his person; and as he fled police, he carried with him the driver’s purse. Nothing in Hughes’s testimony entitled him to a charge on the law of accident as contemplated by OCGA § 16-2-2, and the trial court committed no error when it declined to give such a charge.

3. Hughes contends that the trial court erred in rejecting his request to continue the hearing on his motion for new trial.

The record shows that, after Hughes’s post-conviction attorney filed a motion for new trial raising claims that trial counsel had rendered ineffective assistance, Hughes wrote a letter to the trial judge expressing dissatisfaction with his post-conviction attorney’s performance and thus asking to proceed pro se. Then, at the beginning of the motion for new trial hearing, Hughes insisted that he no longer wanted his post-conviction lawyer to represent him and that he wanted to proceed pro se. After Hughes responded to a series of questions posed by the court, the court allowed Hughes to represent himself. Hughes then filed with the court various pro se motions, including an amendment to his motion for new trial.

Hughes asked the court for a continuance, stating that he did not have his case file and, further, that he wanted time to obtain testimony that would support his claim that he was entitled to a new trial. The trial court elected to proceed with the hearing, explaining, “I’m going to hear what you have to ask [your former lawyers]. If it arises from the questioning you need a[nother] witness, we will continue it.” The court instructed Hughes, “[I]f you wish to call either one of your lawyers and question them about what they did, then you need to go ahead and do that.” Hughes elected to question only his trial lawyer, although his post-conviction lawyer (who by then was no longer representing him) remained in the courtroom.

Near the end of the new trial hearing, Hughes stated that he would have been better prepared had the court continued the hearing. Thus, the trial court ordered Hughes’s post-conviction lawyer to provide Hughes with the case file, then the trial court allotted “each side ten days to file any paperwork they want to file. If there’s something you want to file, Mr. Hughes, you can do so, okay? And I’ll wait on it.” The ten-day period, the court explained, would commence once Hughes received the case file.

The new trial hearing concluded on March 8, 2012. The record before us contains no pleading filed by Hughes after that date but prior to the court’s April 12, 2012 order denying Hughes’s (amended) motion for new trial. Also on April 12, the trial court entered an order denying Hughes’s other pro se motions, which had been filed at the hearing.

Hughes maintains on appeal that he nevertheless was deprived of sufficient time to prepare for his new trial hearing. “In reviewing a trial court’s denial of a motion for a continuance, this [c]ourt will not reverse a trial court’s decision on a motion for continuance except upon a clear abuse of the trial court’s discretion.” Moreover, to be entitled to a new trial based upon the denial of his motion for a continuance, Hughes has the burden of showing that he was harmed by that denial. Hughes has failed to carry that burden. Because “there is no showing that a continuance would have benefitted [Hughes], he has not established harm in the denial of the continuance, and the same cannot constitute reversible error.”

4. Hughes contends that the trial court erred in rejecting his claim of ineffective assistance of trial counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. However, this court is not required to address both components if the defendant has made an insufficient showing on one. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Hughes maintains that his trial lawyer failed to sufficiently investigate his case and was not adequately prepared for trial.

(i) Hughes asserts that his trial lawyer should have requested a mental health evaluation, which might have aided his defense. But “[n]o mental evaluation was offered during the hearing on the motion for new trial; therefore, [Hughes] failed to show that further investigation would liave established a valid psychiatric defense.” Hughes’s speculation does not constitute a showing of professionally deficient performance by trial counsel.

(ii) Hughes complains that his trial lawyer adduced no medical evidence to support his sole defense of accident in that “the defendant arrived at the alleged crime scene via misfortune, defendant [was] running from an assault by individuals who inflicted head trauma upon him.” According to Hughes, his trial lawyer should have presented to the jury a document that he claims was created by the hospital where he was treated on the night in question. According to Hughes, the document contained this language: <cYou have had a head injury which does not appear serious at this time. A concussion is a state of changed mental ability, usually from a blow to the head.” As evidence of the document and its content, Hughes relies upon an exhibit attached to his appellate brief. “Exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal.” And Hughes cites nothing in the record.

The transcript of the new trial hearing does show, however, that Hughes asked his trial lawyer whether he had “subpoena[ed] [hospital records] to show that I had a concussion or a head injury or that I had got jumped?” The lawyer responded that, while the medical records referred to statements made to medical personnel, “your statement to the medical doctor or the nurse, whoever was talking to you, was not substantiated by any medical tests. . . . [T]here was no substantive evidence in the medical record that you suffered a concussion.”

Given the foregoing, Hughes failed to show that his trial lawyer erred by not showing the jury the purported medical documentation of his having suffered a recent concussion. Moreover, Hughes’s trial lawyer did seek to otherwise support Hughes’s claim that he had suffered a head injury during a recent attack. The lawyer introduced in evidence Hughes’s booking photograph, then elicited testimony from Hughes that the booking photograph showed “an irritation, like, a bruise of some sort” on Hughes’s forehead and that “[t]he right side where the initial blunt trauma happened at is kind of puffy and swollen if you look at my face in the picture.”

(iii) Hughes complains that his trial lawyer did not further present expert medical or psychological testimony of his cognitive ability at the time he entered the BMW (in light of having recently received a head injury). Because Hughes made no proffer on motion for new trial as to such an expert’s testimony, however, this complaint fl demonstrates no deficient performance.

(iv) Hughes complains that his trial lawyer did not interview, prior to trial, the individuals called as trial witnesses by the state.

Hughes’s trial lawyer testified that his several attempts to contact the driver of the BMW had failed because she had not been cooperative in speaking with him. And at any rate, because Hughes made no showing on motion for new trial that an interview with any state witness would have produced evidence helpful to his defense, this complaint fails to show any error by trial counsel.

(b) Hughes asserts that his trial lawyer failed to advise him fully on the “consequences of plea offers, recidivist, and mandatory sentencing.” Hughes cites nothing in the record showing that the state sought, or that the trial court imposed, any mandatory sentence or recidivist punishment. What is more, Hughes did not raise these grounds on motion for new trial and thus they were waived.

The pleadings, together with the transcript of the new trial hearing, show that, relative to a plea offer by the state, Hughes’s contention was that his trial lawyer had withheld from him, or failed to timely communicate, any such offer. Hence, Hughes’s trial lawyer testified at the new trial hearing that he had communicated to Hughes prior to trial the only plea offer extended by the state; that he (the lawyer) had strongly recommended to Hughes that he accept that offer; and that Hughes had emphatically rejected it. Hughes’s trial lawyer elaborated that Hughes had believed from the beginning of the prosecution that there was a strong likelihood of being acquitted based upon the defense that was thereafter pursued at trial and that he (the lawyer) had discerned no indication from Hughes that, had the state extended a different plea offer, Hughes would have entertained it. Once the trial began, Hughes’s trial lawyer recalled, the prosecutor notified him that the state’s plea offer was withdrawn. But according to Hughes, his trial lawyer had not informed him of any plea offer prior to trial. Hughes testified at the new trial hearing, “I don’t recall him making me an offer, at all, until the second day of trial.”

It was the function of the trial court at the motion for new trial hearing to determine witness credibility and resolve any conflicts in the testimony. In its role as factfinder, the trial court was authorized to believe the testimony of trial counsel and reject any conflicting testimony from [Hughes]. And on appeal, we must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous. In this case, there is no clear error given trial counsel’s testimony... that... he conveyed all plea bargain offers from the state to [Hughes], and [Hughes] rejected those offers.

5. Finally, Hughes contends that he received ineffective assistance of his post-conviction counsel who represented him on motion for new trial until, in response to Hughes’s demands, the trial court allowed Hughes to represent himself. For the following reasons, Hughes has demonstrated no merit in this contention.

The Supreme Court of Georgia held in White v. Kelso that “a pro se petitioner is in a position similar to that of new counsel” and that “[n]ew counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.”

(a) Hughes charges his post-conviction lawyer with “failure to bring out the omitted evidence.” Hughes points again to purported hospital documentation attached to his appellate brief as an exhibit, but as we have discussed above, Hughes has neither shown, nor asserted, that the exhibit was made a part of the record. What is more, prior to the presentment of evidence at the new trial hearing, Hughes had begun representing himself. And

when a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.

After Hughes began representing himself at the new trial hearing, the court accepted Hughes’s pro se motions, including an amended motion for new trial. Hughes was specifically advised by the court that he could call his post-conviction lawyer to the stand for questioning, but Hughes elected not to do so. Hughes did not enter into evidence any hospital documentation. And although Hughes was afforded opportunity after the hearing to “file any paperwork” he wished the trial court to consider for purposes of his (amended) motion for new trial, Hughes filed nothing.

Under these circumstances, Hughes has failed to demonstrate that his post-conviction lawyer performed deficiently for “failure to bring out the omitted evidence.”

Decided July 15, 2013.

John L. Hughes, pro se.

Patrick H. Head, District Attorney, D. Victor Reynolds, John R. Edwards, Assistant District Attorneys, for appellee.

(b) Hughes complains that his post-conviction lawyer did not pursue a mental competency hearing. But upon representing himself, Hughes sought such a hearing. Specifically, one of the pro se motions that Hughes filed at the new trial hearing was a motion for a competency hearing to determine “[his] degree of criminal responsibility and mental capacity at the time of the acts of alledge [sic] crimes.” The trial court responded from the bench, “I deny that.” And thereafter, on April 12, 2012, with no additional “paperwork” having been filed by Hughes, the trial court entered an order thereon.

Hence, because the trial court was presented and ruled upon the matter, this complaint demonstrates no prejudice attributable to Hughes’s post-conviction lawyer’s performance.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis in original).

        Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011) (punctuation and footnote omitted). See Jackson, supra; OCGA § 24-4-8 (2011) (providing that the testimony of a single witness is generally sufficient to establish a fact). “Georgia adopted a new Evidence Code effective January 1,2013.” Leslie v. State, 292 Ga. 368, 369 (2) (a), n. 3 (738 SE2d 42) (2013). See Ga. L. 2011, pp. 99,214, § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013]”). Hughes’s trial was held in 2011.

       See OCGA § 16-5-44.1.

       See OCGA § 16-8-41 (a).

       See OCGA §§ 16-4-1; 16-5-40.

       See OCGA § 16-10-24 (a).

       See OCGA § 16-13-30.

        Jones v. State, 287 Ga. 770, 771-772 (2) (700 SE2d 350) (2010) (citations and punctuation omitted).

        Wilson v. State, 279 Ga. 104, 105 (2) (610 SE2d 66) (2005).

       See id.

       See Wilson, supra (holding that, where the defendant’s testimony did not raise the issue of accident or misfortune within the meaning of OCGA § 16-2-2, the defendant was not entitled to a charge on the law of accident and thus, the trial court did not err when it declined to give such a charge); Hayes v. State, 261 Ga. 439, 443 (6) (a) (405 SE2d 660) (1991) (holding that “a charge on the defendant’s sole defense is mandatory if there is some evidence to support the charge”) (emphasis in original). Accord Davis v. State, 290 Ga. 757,759 (2) (725 SE2d 280) (2012) (explaining that, where defendant was tried for felony murder predicated on a drug transaction and the underlying circumstances were analogous to a robber who had killed someone while fleeing, affirmative defense of self-defense was inapplicable when the accused was attempting to commit or was committing a felony); Davis v. State, 269 Ga. 276, 279-280 (3) (496 SE2d 699) (1998) (determining that defendant’s version of events did not authorize charge on the law of accident, where it showed “at the least, criminal negligence”).

       These pleadings included a motion for a competency hearing, which is discussed in Division 5 (b), infra.

        Columbus v. State, 270 Ga. 658, 665 (4) (513 SE2d 498) (1999) (punctuation and footnote omitted); see Smith v. State, 290 Ga. 428, 432-433 (6) (721 SE2d 892) (2012) (reviewing for abuse of discretion the trial court’s ruling on defendant’s motion to continue the hearing on the motion for new trial).

       See generally Columbus, supra.

       See Miller v. State, 303 Ga. App. 422, 424 (693 SE2d 637) (2010) (“In the absence of a proffer of... testimony or other evidence to demonstrate harm, [the defendant] failed to show that the trial court clearly abused its discretion in denying the continuance.”) (citation, punctuation and footnotes omitted).

       Id. at 423.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Whitaker v. State, 291 Ga. 139, 141 (2) (728 SE2d 209) (2012).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        Cormier v. State, 277 Ga. 607, 609 (2) (b) (592 SE2d 841) (2004), citing Strickland, supra; see Haygood v. State, 289 Ga. App. 187, 193 (2) (a) (656 SE2d 541) (2008) (“If a defendant wishes to claim ineffectiveness based on trial counsel’s failure to request a psychiatric evaluation, it is not enough to show merely that counsel unreasonably failed to inquire into his mental state — he must show a likelihood that such an evaluation would have affected the outcome at trial.”) (footnote omitted).

       See Lanier v. State, 288 Ga. 109, 111 (3) (a) (702 SE2d 141) (2010) (determining that speculation will not support a finding of deficient performance); see also Cormier, supra; Haygood, supra.

        Jones v. State, 304 Ga. App. 445, 447 (1), n. 10 (696 SE2d 346) (2010) (citation and punctuation omitted).

       See Lanier, supra; see also Pringle v. State, 281 Ga. App. 230, 234 (2) (a) (635 SE2d 843) (2006) (absent proffer of what testimony of expert would have been at trial, defendant cannot show a reasonable probability that he was prejudiced by counsel’s failure to hire such an expert).

       See generally Terry v. State, 284 Ga. 119, 121 (2) (b) (663 SE2d 704) (2008) (holding that, where trial counsel testified that he attempted to interview witnesses, but they would not speak with him, claim of ineffective assistance for failure to interview said witnesses had no merit).

       See Hendricks v. State, 290 Ga. 238, 241-242 (4) (b) (719 SE2d 466) (2011) (determining that defendant had failed to meet his burden of showing deficient performance on counsel’s part, where defendant asserted that counsel erred by not calling witnesses, but defendant did not show what favorable evidence would have been elicited from such witnesses); see also Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002) (trial counsel’s alleged omission cannot be deemed prejudicial where defendant has not shown that the omitted evidence would have been favorable to his defense).

       Hughes did not question his trial lawyer specifically as to these matters. See Mitchell v. State, 290 Ga. 490, 492 (4) (b) (722 SE2d 705) (2011) (determining that ineffectiveness claim not argued on motion for new trial was waived for purposes of appeal); Nichols v. State, 285 Ga. 784, 785 (4) (a) (683 SE2d 610) (2009) (explaining that where the allegation of ineffectiveness raised on appeal differs from that raised before the trial court, the ground is deemed waived); Ogden v. State, 266 Ga. App. 399, 401 (2) (a) (597 SE2d 491) (2004) (same).

       In his (amended) motion for new trial, Hughes alleged that “the Defendant’s Trial Counsel was ineffective in failing to inform the Defendant of plea offers made by the State.”

        Butler v. State, 319 Ga. App. 350, 353 (734 SE2d 567) (2012) (citations and punctuation omitted).

       261 Ga. 32 (401 SE2d 733) (1991).

       Id. at 33.

       Id. at 32; see generally Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996) (explaining that an ineffectiveness claim must be raised “at the earliest practicable moment” requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time).

       See Division 4 (a) (ii), supra.

       See Jones, 304 Ga. App. at 447 (1), n. 10 (concerning exhibits attached to appellate briefs but not appearing in the record transmitted by the trial court).

        Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982). Accord Fields v. State, 310 Ga. App. 455, 459 (4) (714 SE2d 45) (2001) (holding that where appellant “proceeded pro se at trial, he cannot raise an ineffective assistance of counsel claim with regard to issues that arose during trial”).

       See Dickens v. State, 280 Ga. 320, 321-322 (2) (627 SE2d 587) (2006) (explaining that “[c]ounsel’s testimony assessing an uncalled witness’s testimony is pertinent to [ineffectiveness] inquiry because it serves to explicate counsel’s decision making process”); Wilson v. State, 277 Ga. 195, 200 (2) (586 SE2d 669) (2003) (“In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.”) (citation and punctuation omitted).

       See Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (“There is a strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct, and generalized claims to the contrary not supported by affirmative evidence are insufficient to show deficient performance.”) (citation omitted); Wilson, 277 Ga. at 200 (2) (concluding that where instances of ineffectiveness alleged by defendant involved matters as to which evidence was required and no evidence was produced to establish the matters, the trial court correctly rejected ineffectiveness claim); Mullins, supra; Hammock v. State, 311 Ga. App. 344, 346 (2) (c) (715 SE2d709) (2011) (noting that defendant could only speculate as to what the missing evidence might have shown and concluding that such speculation was insufficient to authorize a finding that defense counsel ineffectively overlooked beneficial evidence); see also Shaw v. State, 292 Ga. 871, 874-875 (3) (a), n. 5 (742 SE2d 707) (2013), citing Chandler v. United

        States, 218 F3d 1305, 1314, n. 15 (11th Cir. 2000) ("An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of competent performance]. Therefore, where the record is incomplete or unclear about counsel’s actions, we will presume that he did what he should have done . . . .”) (citation and punctuation omitted).

       See Mullins, supra; Fields v. State, 310 Ga. App. 455, 458-459 (4) (714 SE2d 45) (2011) (rejecting claim of ineffective assistance of trial counsel, where defendant receivedhis requested pro se status prior to trial and was thus allowed to file pretrial motions on his own behalf, which motions were addressed by the trial court; determining that the defendant had failed to demonstrate how counsel’s pretrial representation had prejudiced him).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0569.
    NEWSOME v. THE STATE.
    (747 SE2d 99)
   Ray, Judge.

Wehman Newsome appeals from the denial of his motion for new trial and the judgment of conviction entered on a jury verdict finding him guilty of “drug possession, sale, manufacture, with the intent to distribute.” On appeal, Newsome asserts the following errors: (1) that the trial court erred in failing to strike a juror for cause; (2) that the evidence was insufficient to convict Newsome under the “equal access” doctrine; (3) that the jury’s verdict form was unclear and found him guilty of crimes for which he was not charged; and (4) that his trial counsel rendered ineffective assistance by failing to object to the form of the verdict. For the following reasons, we reverse the judgment and remand the case to the trial court for a new trial.

1. We find that the evidence presented at trial was more than sufficient to allow the jury to properly convict Newsome under the lesser included offenses as properly charged.

2. Newsome contends that the jury’s verdict was illegal because it found him guilty on counts with which he was not charged. We agree.

Newsome was indicted and tried before a jury on the charge of trafficking in cocaine. After the close of evidence, the trial court instructed the jury on the charged offense and the lesser included offenses of possession of cocaine and possession of cocaine with intent to distribute, and gave complete instructions on the presumption of innocence and the State’s burden of proving guilt beyond a reasonable doubt. The jury was presented with a pre-printed jury form that provided that the jurors could find Newsome guilty or not guilty of trafficking cocaine, but the form did not provide for the lesser included offenses charged by the trial judge. After deliberating for some time, the jury asked the following question: “[h]ow do we record a lesser charge on the verdict sheet?” The trial court instructed the jury that if they wished to find Newsome guilty of the charged lesser included offenses, they were to strike out the words “trafficking in cocaine” from the pre-printed verdict form and hand-write either “possession of cocaine with intent to distribute” or “possession of cocaine.” The jury was sent back for further deliberations, and they then returned a partially handwritten verdict form stating: “[W]e the jury, find the Defendant . . . Guilty [of] drug possession, sale, manufacture, with the intent to distribute.” The jury foreman orally stated that the jury found Newsome not guilty as to the offense of trafficking in cocaine. Counsel for both the defense and the prosecution were allowed to examine the verdict form. No objections were made by the prosecution or the defense counsel, and it was published in open court. The trial court then dismissed the jury.

At Newsome’s sentencing hearing, the trial court determined that the language of the jury’s verdict form meant that they intended to find Newsome guilty of possession with intent to distribute. Newsome was then sentenced on that charge to thirty years, with fifteen to serve in custody and the balance on probation.

In State v. Freeman, 264 Ga. 276 (444 SE2d 80) (1994), our Supreme Court held:

Jurors have a duty to take the law from the trial court’s instructions and apply it to the facts which they determine from the evidence adduced at trial... [and] it is the duty of the trial court not only to tell the jury what the law is, but to insist that they apply it and either render a verdict on some issue submitted or else make a mistrial.

(Citations and punctuation omitted.) Id. at 277. The Freeman Court further held that the trial court “has a duty to insist on a legal verdict, that is, a verdict responsive to the issues as framed by the indictment or accusation and the evidence, and specified in the trial court’s charge to the jury.” Id. at 277-278.

In the present case, Newsome was not charged with the sale or manufacture of cocaine. Although the trial court in the present case evaluated the jury’s verdict form and determined that the jury meant to convict Newsome of possession of cocaine with intent to distribute, a lesser included offense that was properly charged to the jury, this was not an appropriate method of resolving the jury’s illegal verdict. Rather, the Freeman Court instructed that the proper procedure “is for the trial court and counsel to review the verdict prior to its publication in open court, and if the verdict is not proper in that it finds the defendant guilty of an offense with regard to which the trial court did not instruct the jury,” the trial court should send the jury to continue their deliberations with instructions to return a verdict consistent with the jury instructions provided to them at the close of evidence. Id. at 278. Accord Brooks v. State, 311 Ga. App. 857, 859-860 (2) (717 SE2d 490) (2011) (when a jury renders a verdict on counts with which a defendant was not charged, a trial court has a duty to intervene even where defense counsel fails to object). See also Robinson v. State, 282 Ga. App. 214, 214-215 (638 SE2d 370) (2006) (trial court correctly refused to accept jury’s verdict finding defendant “guilty with reasonable doubt,” and required the jury to resume deliberations to cure the defect). “Because the trial court in this case did not so intervene before the dismissal of the jury, a new trial is authorized.” Brooks, supra at 860 (2). Accordingly, we reverse and remand the case to the trial court for a new trial.

3. In light of our holding in Division 2, we need not address the appellant’s remaining enumerations.

Judgment reversed and case remanded.

Barnes, R J., and Miller, J., concur.

Decided July 15, 2013

Jackie G. Patterson, for appellant.

Tommy K. Floyd, District Attorney, David E. Slemons, James L. Wright III, Assistant District Attorneys, for appellee.

       In so ruling that the trial court erred, we understand that the trial court was acting in good faith and attempting to salvage the jury’s verdict that came after much consideration, deliberation, and sacrifice by these empaneled citizens.


text:
    A13A0585.
    GLENN v. GIBBS et al.
    (746 SE2d 658)
   Phipps, Chief Judge.

Madeira Glenn, the widow of Joel Glenn, sued homeowners Frankie and Trena Gibbs, seeking damages for the death of Joel Glenn as a result of a fall on the Gibbses’ property. The trial court granted summary judgment to the Gibbses. Madeira Glenn appeals. We affirm.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. On summary judgment, we must construe the evidence and all reasonable inferences and conclusions that may be drawn from it most favorably to the nonmovant.

So construed, the evidence showed the following. On Saturday, May 31, 2008, the Gatlin Creek Baptist Church, which both couples had attended, held a fundraiser whereby volunteers from the church helped others with yard work and other small jobs in exchange for monetary contributions to the church youth ministry. Frankie Gibbs (hereinafter “Gibbs”), who had no experience using a chainsaw, deposed that approximately two months before the fundraiser, he recalled that Joel Glenn (hereinafter “Glenn”) had “done chainsaw work with the Georgia Disaster Relief,” so he asked Glenn whether he would be interested in trimming some limbs on his property. Gibbs deposed that he and Glenn had not discussed any details at the time, however, and that he (Gibbs) had forgotten that he had asked Glenn about trimming the limbs until the week of the fundraiser. That week, he had seen Glenn, and Glenn asked him whether he still wanted some limbs trimmed. According to Gibbs, Glenn said that Saturday he would “have ... boys from the youth group,” and he could trim the limbs if Gibbs still wanted them trimmed. Gibbs accepted the offer, understanding that the work was being performed in exchange for a monetary donation to the youth ministry.

On Friday, Glenn went to the Gibbses’ home and Gibbs showed Glenn which limbs he wanted trimmed. The next morning (Saturday), Glenn went back to the Gibbses’ home with his own chainsaw and ladder, and with two youths from the church. He proceeded to trim the biggest limb Gibbs wanted trimmed. According to Gibbs, Glenn climbed the ladder and began cutting the limb with the chainsaw, and the chainsaw became lodged in the tree. Gibbs commented, “Joel, you done messed up now . . . the saw has gotten jammed.” Gibbs retrieved a pitchfork, which he used to lift the limb to dislodge the chainsaw from the tree. Afterward, Gibbs turned around and walked away to a shed to put away the pitchfork. Glenn resumed trimming the limb. As Gibbs turned back around, he saw the tree limb “flying off” and Glenn falling head first to the ground.

One of the youths Glenn had brought to assist in the tree trimming deposed as follows. Glenn climbed an A-frame ladder and began cutting the limb with a chainsaw. The chainsaw became lodged in the tree, and Gibbs retrieved a pitchfork to dislodge it. After the chainsaw was dislodged, Glenn, who had climbed to the very top of the ladder, straddled the ladder — one foot on each side — “standing a little bit,” and resumed cutting the limb. Suddenly, the limb snapped off and hit the top of the ladder, knocking the ladder backward; Glenn fell forward, head first, and landed on his back.

Glenn was taken to a hospital by ambulance. He never regained consciousness and died four days later. The Gibbses had the tree removed a year-and-a-half after the incident.

On May 28, 2010, Madeira Glenn, individually and in her representative capacity as administrator of Glenn’s estate, filed a complaint against the Gibbses for damages she alleged were the “direct, substantial and proximate result of the negligent acts and omissions by [the Gibbses] resulting in injuries to Joel Lewis Glenn on May 31, 2008, at the home of [the Gibbses].” Madeira Glenn alleged that the Gibbses had breached the ordinary duty of care they owed Glenn pursuant to OCGA § 51-3-1, as an invitee upon their property.

The Gibbses moved for summary judgment, asserting that it was undisputed that at the time of the incident, Glenn’s status upon their property was as an invitee, who was owed by the Gibbses a duty of care pursuant to OCGA § 51-3-1, as alleged by Madeira Glenn. The Gibbses further asserted, however, that Glenn was also an independent contractor, tasked with a duty of his own to make certain his work area was safe, take all necessary precautions, and exercise ordinary care for his own safety. The Gibbses asserted that there was no evidence that Gibbs possessed superior knowledge to Glenn — the true basis of any proprietor’s liability for personal injury to an invitee — as it concerned the use of ladders and chainsaws.

Madeira Glenn contends that the trial court erred in its order granting summary judgment to the Gibbses by holding that Glenn was an independent contractor, finding that Glenn possessed superior knowledge and proficiency to that of Gibbs, and holding that no material evidence had been spoiled and no prejudice had been shown by spoliation of evidence.

1. We first address Madeira Glenn’s contention that the trial court erred by holding that Glenn was an independent contractor. She claims that Glenn was an invitee, and that by ruling that he was an independent contractor, the trial court placed a higher burden on Glenn, as an independent contractor is expected to determine for himself whether his place of employment is safe or unsafe. Madeira Glenn argues that the general rule regarding the duty owed to an invitee was applicable to this case.

(a) In support of her argument that Glenn was an invitee and not an independent contractor, Madeira Glenn points out that the evidence showed that Glenn was a volunteer, that he was solicited by Gibbs, that he never received any payment for the work performed, that there is a question as to whether the Gibbses made a donation to the church for the work performed, and that Glenn did not receive any benefit from trimming the tree. These facts, she argues, show that Glenn was working at the direction of and for the benefit of the Gibbses, and was, thus, not an independent contractor. We disagree.

The test for determining whether a person employed is an employee or an independent contractor is

whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work.
Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.

After Gibbs had approached Glenn and asked him to trim limbs on his property, Glenn, two months later, offered to trim the limbs on one particular Saturday. Glenn decided what time he would trim the limbs that day. Glenn decided where to place the ladder, and never asked for Gibbs’s assistance in operating the chainsaw. Gibbs had no training or experience in operating a chainsaw and did not direct Glenn in the use of the chainsaw or in positioning the ladder. Gibbs did not tell Glenn how to cut the limbs. Glenn brought his own chainsaw and ladder to trim the limbs. Aside from assisting in dislodging the chainsaw from the tree, Gibbs merely pointed out to Glenn which limbs he wanted trimmed.

The evidence showed that Glenn decided when he would trim the limbs, and the manner, method, and means of trimming the limbs; there was no evidence that Gibbs retained the right to control these factors. Under the test provided above, the evidence demanded a finding that Glenn was an independent contractor.

(b) We now turn to Madeira Glenn’s claims that the trial court, by ruling that Glenn was an independent contractor, placed a higher burden on Glenn because an independent contractor is expected to determine for himself whether his place of employment is safe or unsafe.

An owner or occupier of land is liable in damages to invitees who come upon his land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. This duty requires the owner or occupier of land to exercise ordinary care for the safety of his invitees in discovering defects or danger in the premises and imposes liability for injuries resulting from such defects as a reasonable inspection would disclose. Under this principle is found the duty of an owner of premises to an individual contractor . . . who lawfully comefs] upon the premises in the performance of a contract between the owner and the contractor because the independent contractor... [is an] invitee [ ]. Thus, an owner having work done on his premises by an independent contractor, who has actual or constructive knowledge of potential dangers on the premises, owes a duty to the contractor to give warning of, or use ordinary care to furnish protection against, such dangers to the contractor and his employees who are without actual or constructive notice of the dangers, and which could not he discovered by them in the exercise of ordinary care.

But an invitee must also “exercise ordinary care for his own safety and I must by the same degree of care avoid the effect of the owner or occupier’s negligence when it becomes apparent to him, or in the exercise of ordinary care should have learned of it.” The trial court did not expressly rule that Glenn’s status upon the premises was not as an invitee. And based on the foregoing, the trial court’s conclusion that Glenn was an independent contractor did not preclude his status as an invitee. Legal authority concerning Glenn’s status as an invitee was pertinent to this case, and, in fact, was applied by the trial court in its ruling.

In Odister v. Leach, which the trial court cited in its order granting summary judgment, a homeowner employed a passerby, who was walking down the street looking for work, to pick up trash in the backyard of his home. Later, the homeowner asked the passerby whether he would be able to remove a large tree limb that was hanging over the roof of the house. The passerby had worked for a landscape construction company for ten years and told the homeowner that he knew how to operate a chainsaw. The passerby deposed that he had also told the homeowner that he was capable of cutting the limb while on a ladder, even though his prior experience cutting limbs did not necessitate climbing a ladder. At the homeowner’s request, the passerby secured a rope around the limb so that the homeowner could pull the limb away from the house. The passerby climbed the ladder, started the chainsaw, and began cutting the limb, while the homeowner remained on the ground, holding the rope. The homeowner testified that he thought the limb would fall straight down; but instead, once the passerby cut through it, the end of the limb that had been attached to the tree flew upward over the ladder and struck the passerby in the chest, knocking him to the ground. The passerby suffered fractured bones.

In determining the propriety of the trial court’s grant of summary judgment to the homeowner on the basis that the passerby assumed the risk of his injuries, this court first recognized the general rule concerning the duty of an owner or occupier of land to an invitee, found in OCGA § 51-3-1:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

The court then recognized and applied an exception pertinent to cases involving workers employed to do work which may be considered dangerous.

The general rule of law, that it is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, does not apply to a case where the very work for which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards thus arising as the work proceeds must be regarded as being the ordinary dangers of the employment, and the servant necessarily assumes them. Thus, where the injured servant was [employed] for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable.

Likewise, this case concerned whether Glenn assumed the risk of his injuries based on the ordinary dangers attendant with the task he was employed to perform; not whether Glenn was erroneously saddled with an expectation of determining whether the Gibbses’ premises were safe or unsafe. Accordingly, there is no merit in Madeira Glenn’s claim that the trial court’s ruling placed a higher burden on Glenn than he would otherwise have had if the court had not determined that he was an independent contractor.

2. Madeira Glenn contends that the trial court erred in its order granting summary judgment by finding that Glenn’s knowledge and proficiency were superior to Gibbs’s.

Specifically, she claims:

It is of no consequence that Mr. Glenn was more experienced (i.e. had “superior knowledge”) with the use of ladders and chainsaws. Neither the ladder nor the chainsaw caused the fall. The falling tree limb caused the fall. Thus, even if Mr. Glenn was aware that limbs fall in the course of trimming trees, Defendant Gibbs had a duty to warn him of the dangers and/or to assist him once Mr. Gibbs became aware that there was a problem with the limb or noticed problems with Mr. Glenn’s trimming of the limbs____From Mr. Gibbs’ vantage point of both seeing the problem with the limb and how is [sic] was coming down and from his own knowledge of having to lift the limb with a pitchfork, Defendant Gibbs, at that point had superior knowledge, or at least equal knowledge, to Mr. Glenn and had a duty at that point to warn Mr. Glenn.

Madeira Glenn claims that Gibbs’s superior knowledge was evidenced by his comment to Glenn that he (Glenn) had messed up, and by Gibbs’s taking affirmative steps to assist Glenn by retrieving the pitchfork and lifting the limb to dislodge the chainsaw.

The true ground of premises liability is a landowner’s superior knowledge of [a] perilous condition and the danger therefrom to persons coming upon the property; it is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.

“In order for [the Gibbses] to prevail on summary judgment, [they] had the burden to negate the existence of superior knowledge on [their] part, with all doubts and conflicts being resolved in plaintiff’s favor.”

Madeira Glenn claims that Gibbs had a duty to warn Glenn of dangers and/or to assist Glenn once Gibbs became aware that there was a problem with the limb or noticed problems with Glenn’s trimming of the limbs. But the undisputed evidence showed that the only problem Gibbs noticed was that the chainsaw had become lodged in the tree. When that occurred, Gibbs did assist Glenn in dislodging the chainsaw. Gibbs deposed that his comment to Glenn, that he (Glenn) had “messed up,” was a reference to the chainsaw becoming lodged in the tree.

And although Madeira Glenn claims that Gibbs had a certain “vantage point of both seeing the problem with the limb and how is [sic] was coming down and from his own knowledge of having to lift the limb with a pitchfork,” there was no evidence of this. Gibbs deposed that after he had dislodged the chainsaw, he turned and walked away to put away the pitchfork, and Glenn resumed trimming the limb, which fell just as he (Gibbs) had turned back around. There was no evidence that immediately after the chainsaw was dislodged, there was a problem with the limb, the limb began to fall, Gibbs observed a problem with the limb, or Gibbs noticed that the limb began to fall.

The evidence showed that Gibbs’s knowledge was not superior to Glenn’s. Gibbs deposed that he did not own a chainsaw or a ladder; that he had minimal experience climbing ladders; that he knew that Glenn had received training on the use of a chainsaw; that Glenn seemed to be a safe operator of a chainsaw; that on the day of the incident, he felt as though Glenn was operating the chainsaw in a safe manner; and that on the day of the incident, he did not see Glenn maneuver either the chainsaw or the ladder in any way that caused him concern.

Glenn’s “injury was received from a danger that would ordinarily and naturally exist in doing the work which he was employed to perform.” Glenn was known to have had training and experience using a chainsaw and ladders, which, according to Madeira Glenn, included how to “lay a tree.” After being asked by Gibbs to trim tree limbs, Glenn subsequently offered to trim the limbs for Gibbs, and arrived at Gibbs’s home with his own chainsaw and ladder to perform the job, which he had surveyed the evening before. After the chainsaw was stuck and subsequently dislodged from the tree, Glenn, on his own, and without any request for assistance (other then having asked the youths in the beginning to watch the ladder), resumed cutting the limb. The limb then snapped off, knocking the ladder and Glenn to the ground. Given Glenn’s past training and experience utilizing a chainsaw, and evidence that Gibbs had no such training and experience, Madeira Glenn cannot claim that Gibbs had superior knowledge of the dangers associated with the task. Indeed, she conceded that Glenn’s knowledge was superior to Gibbs’s; as she stated in her appellate brief, “It is of no consequence that Mr. Glenn was more experienced (i.e. had ‘superior knowledge’) with the use of ladders and chainsaws.”

Furthermore, the youth deposed that when the limb broke away from the tree, it did so suddenly. “One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” The evidence showed that Glenn assumed the risk of his injuries.

Decided July 15, 2013.

Whitehurst, Blackburn & Warren, Christopher K. Rodd, for appellant.

Martenson, Hasbrouck & Simon, Edward A. Miller, for appellees.

Relying, in part, on Clark v. Carla Gay Dress Co., Madeira Glenn asserts that in this case a “straightforward foreseeability analysis, as opposed to the more restrictive superior knowledge rule” should be applied because this case fell in the category of cases where “the plaintiff has knowledge of a defect but not necessarily of the danger posed thereby or situations involving inherently dangerous instrumentalities or actively dangerous individuals.” That case, however, is inapplicable; it concerned a proprietor’s alleged breach of his duty to keep the premises safe based on the proprietor’s failure to protect the invitee from acts and consequences of the acts of a third party which the invitee herself was powerless to prevent by ordinary care. It is in that context that this court determined that “[t]he true basis of liability in such a case is the foreseeability of the consequences by the proprietor, which consequences the plaintiff could not avoid with use of ordinary care.” Those facts do not present themselves here. Moreover, as previously shown, Madeira Glenn’s contention was based on facts not supported by the record.

3. Madeira Glenn contends that the trial court erred by holding that no material evidence had been spoiled and no prejudice had been shown by spoliation of evidence. Based on our conclusions in Divisions 1 and 2, we need not address this issue.

Judgment affirmed.

Ellington, P. J., concurs. Branch, J., concurs in Divisions 2 and 3 and concurs in the judgment only as to Division 1.

        Mosera v. Davis, 306 Ga. App. 226 (701 SE2d 864) (2010) (footnote omitted).

        Amear v. Hall, 164 Ga. App. 163, 165-166 (1) (296 SE2d 611) (1982) (citations and punctuation omitted); Broadnax v. Daniel Custom Constr., 315 Ga. App. 291,294 (1) (726 SE2d 770) (2012).

        Broadnax, supra at 295-296 (1) (citation and footnote omitted); Amear, supra at 165 (1).

        See Amear, supra at 164-166 (1); cf. Broadnax, supra at 294-295 (1).

       See Amear, supra at 167 (2) (“An individual contractor is expected to determine for himself whether his place of employment is safe or unsafe. . . .”).

        Amear, supra at 166 (2) (citations omitted); OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”).

        Schuessler v. Bennett, 287 Ga. App. 880, 884 (1) (652 SE2d 884) (2007) (footnote omitted); Amear, supra at 167 (2).

       257 Ga. App. 106 (570 SE2d 391) (2002).

       Id. at 106.

       Id.

       Id. at 106-107.

       Id. at 107.

       Id.

       Id.

       Id.

       Id. at 107-108.

       Id. at 108 (footnote omitted); Carter v. Country Club of Roswell, 307 Ga. App. 342, 345 (705 SE2d 170) (2010).

       See Odister, supra at 108-109; Elsberry v. Ivey, 209 Ga. App. 620, 621-622 (2) (a), (b), (c) (434 SE2d 158) (1993).

        Wimpey v. Otts, 207 Ga. App. 40, 42 (427 SE2d 34) (1993) (citations omitted).

        Lee v. Myers, 189 Ga. App. 87, 89-90 (2) (374 SE2d 797) (1988) (citations omitted).

        Odister, supra at 108 (punctuation and footnote omitted).

       See Odister, supra at 108-109.

        Byrd v. Rivenbark, 183 Ga. App. 564, 566 (359 SE2d 433) (1987) (citation and punctuation omitted).

       See Odister, supra at 109; Howell v. Farmers Peanut Market, 212 Ga. App. 610-611 (1), (2) (442 SE2d 904) (1994) (grant of summary judgment to proprietor affirmed where individual employed to replace a motor from the top of an elevator was injured attempting to perform task; held, individual had opportunity to assess any potential dangers before resuming task and injury was received from a danger that would ordinarily and naturally exist in doing the work which he was employed to perform); Elsberry, supra (grant of summary judgment to homeowner affirmed where handyman employed to remove shingles from roof of house was injured when shingles slid, causing him to fall from roof; held, handyman assumed the ordinary risk of working on the roof of an old house and his injury arose from dangers that “ordinarily and naturally exist in doing the work” for which he was employed); Beard v. Fender, 179 Ga. App. 465-466 (346 SE2d 901) (1986) (reversing denial of motion for directed verdict to property owner where volunteer neighbor’s knowledge of the danger associated with clearing a wasps’ nest was equal to that of property owner’s); Dodd v. Clary, 135 Ga. App. 296-297 (217 SE2d 397) (1975) (grant of summary judgment to employer affirmed where individual employed to assist in cutting down tree was killed by large limb that fell from tree being cut down; although evidence did not show whether employee knew that limb was rotten, evidence showed that employee had equal means with employer to know of the danger).

       178 Ga. App. 157 (342 SE2d 468) (1986).

       Id. at 160-161.

       Id. (citation omitted; emphasis omitted and supplied).

       Supra.


author: McMILLIAN, Judge.

text:
    A13A0597.
    ROSS v. THE STATE.
    (747 SE2d 81)
   McMILLIAN, Judge.

On September 6, 2007, a multi-agency law enforcement group tasked with eradication of marijuana was operating in Morgan County. A helicopter flown by a Georgia State Patrol sergeant was searching for marijuana plants, which may be identified from the air by their color and shape. When two marijuana plants were spotted growing in a tire located in a rural area of young pine trees and high grass, a ground team was alerted to travel to that location. The plants were behind a house situated a quarter of a mile or more from the next residence. The backyard of the house was an area of mowed grass that ended at an apparent property line where the area with pine trees and high grass began. The marijuana plants were at the end of a distinct path that led from the property line for a distance of approximately 75 feet.

After spotting the marijuana plants, the helicopter crew circled the area and reduced altitude in order to confirm identity of the marijuana plants and to search for others. At that time, the helicopter crew saw appellant William Ross come out of the house and go to a black car. Ross was back and forth between the house and the car several times before the ground team arrived. When the ground team arrived, Ross was in the car, but was detained and later arrested for “cultivating marijuana.”

After his arrest, Ross’s car was searched, and an officer found a pack of rolling papers and a device that could be used to roll marijuana cigarettes in the glove box. Additionally, two containers of fertilizer and a book entitled The Healing Magic of Cannabis were found in the trunk.

Ross was charged by accusation with the offense of manufacturing marijuana (OCGA § 16-13-30). After the denial of his motion to suppress evidence, Ross was convicted by a jury of the offense charged. Amotion for new trial was denied, and this appeal followed.

1. Ross first complains that the trial court erred by denying his motion to suppress, asserting that the warrantless vehicle search violated Arizona v. Gant, 556 U.S. 332, 343 (III) (129 SCt 1710, 173 LE2d 485) (2009). We disagree.

“Although the general rule under the Fourth Amendment to the United States Constitution is that police officers must secure a warrant prior to conducting a search, there is an exception to that requirement for the searches of automobiles.” Brown v. State, 311 Ga. App. 405, 407 (715 SE2d 802) (2011).

Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.

(Citation and punctuation omitted.) State v. Sarden, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). “Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law.” (Citation omitted.) Id. This inquiry is based on the “totality of circumstances surrounding a transaction.” (Citation omitted.) Brown, 311 Ga. App. at 408. “If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence might be found.” Gant, 556 U.S. at 347.

Here, the officers observed marijuana plants in a rural part of Morgan County, a path between the closest residence and the marijuana plants, and Ross going back and forth from the house to his vehicle, and at one point in time, looking under the hood of the vehicle. Ross was stopped in his vehicle, and a responding officer subsequently noted that one of the tires on the vehicle did not match the others and that the tire had the same make, model and serial number as the tire in which the marijuana plants were being grown. Based on the totality of the circumstances, we find that a reasonable and prudent officer could believe that Ross was manufacturing marijuana and using his vehicle to transport the contraband. Thus, there was probable cause to believe that Ross’s vehicle contained marijuana, and the search of the passenger compartment and trunk was justified pursuant to the automobile exception to the warrant requirement. See Jones v. State, 319 Ga. App. 678 (738 SE2d 130) (2013) (smell of burnt and raw marijuana emitting from vehicle justified search of trunk once officers were unable to find marijuana in the passenger compartment); Brown, 311 Ga. App. at 408 (smell of marijuana, observation of suspected marijuana on floorboards of the car, and driver’s visible agitation justified warrantless search of vehicle, including trunk, under automobile exception to warrant requirement).

Ross contends that the search was conducted incident to arrest, and under Gant, the State’s failure to show where he was located at the time of arrest invalidates the warrantless search. But Gant clearly did not disturb other established exceptions to the Fourth Amendment’s warrant requirement, including our “automobile exception.” See Gant, 556 U.S. at 347 (IV); Horne, 318 Ga. App. at 490, n. 5; Sarden, 305 Ga. App. at 589, n. 1. Accordingly, we find no error in the trial court’s denial of Ross’s motion to suppress.

2. The remaining enumeration of error challenges the sufficiency of the evidence supporting Ross’s conviction. Viewed in the light most favorable to the verdict, the evidence shows that marijuana plants were being carefully cultivated in a location accessible from a house that was connected to only three people. The cultivation of the contraband was shown to be associated with the house by several items found in the yard. The tire within which the marijuana plant was growing was identical to two tires found stacked next to a shed in the yard. The compost material used to grow the contraband appeared similar to material found in the yard. A bucket which could have been used to water the plants, which require frequent hydration, was located at the property line near the path to the plants. And there were multiple quantities of fertilizer that would be useful in nourishing the plants.

The owner of the house, Geraldine Cooper, had lived in the house for over thirty years and raised her family there. Her adult son resided in the house with her, but he was an electrical engineer who often traveled and was gone when the marijuana was discovered. Cooper and Ross had started dating after her husband died some years before, and Ross had become a frequent visitor and overnight guest.

A search of the house revealed no evidence of marijuana, and Cooper denied she knew about the marijuana growing near her house, testimony the jury was allowed to credit or discredit as it saw fit. Further, as stated above, a search of Ross’s car had revealed rolling papers, a device which could be used to roll marijuana cigarettes, fertilizer, and a book concerning marijuana. The jury, after considering the strong direct evidence connecting the marijuana plants with the house and the resulting brief list of suspects, was authorized to determine that Ross was guilty beyond a reasonable doubt of the offense charged.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

Decided July 15, 2013.

Darel C. Mitchell, for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

       We note that the motion to suppress hearing took place before the issuance of Gant.

         Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


text:
    A13A0634.
    PUGH v. THE STATE.
    (747 SE2d 101)
   Ray, Judge.

Following a jury trial, Brandon Sanchez Pugh was convicted on three counts of armed robbery (OCGA § 16-8-41) and two counts of giving a false statement to a law enforcement officer (OCGA § 16-10-20). He appeals from the denial, in part, of his motion for new trial, contending that he had ineffective assistance of counsel. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that around 9:00 a.m. on August 18, 2008, Tracy Dukes, Betty Williams, and Areli Lynn Sanders were working as tellers at a Wachovia Bank branch when two African-American males wearing ski masks and gloves entered the bank, held them at gunpoint, and robbed them of approximately $18,000. The masked men took money from the tellers, which was placed into bags along with red dye packs. The men then took the bags and fled the bank.

Immediately before the robbery, a bank customer, Tom Thompson, was on his way into the bank to make a deposit when he noticed a white Cadillac Seville backed into a parking space with both the driver and passenger doors partially open. After completing his transaction at the bank, Thompson was walking back to his car when he saw two men wearing ski masks jump out of the Cadillac and run into the bank. Thompson immediately called 911 and provided the operator with the tag number of the vehicle. A few minutes later, Thompson saw the two men run out of the bank, get back into the Cadillac, and drive off.

As the perpetrators were driving off, another bank customer, J anet Hilgerson, had just pulled into the bank parking lot. A bystander yelled at Hilgerson, telling her that the bank had just been robbed and to “follow that car.” Hilgerson turned her vehicle around and followed the white Cadillac Seville from the bank to a nearby Efficiency Lodge hotel. After the Cadillac turned into the Efficiency Lodge parking lot, Hilgerson turned her vehicle around, went back to the bank, and provided the police officer who had responded to the scene with a partial tag number of the Cadillac and the vehicle’s location.

The police went to the Efficiency Lodge and found the white Cadillac Seville parked behind the hotel. Investigators later found red dye stains inside the vehicle, as well as Pugh’s checkbook.

After determining that the vehicle was registered to Pugh, investigators located Pugh later that day at Hartsfield Jackson International Airport, where he worked as a tug operator. Before speaking with Pugh, the investigators were informed that the Cadillac had been reported stolen. Pugh had gone to the East Point Police Department around 11:00 a.m. that day, approximately two hours after the armed robbery, and reported that his car had been stolen from a Texaco some 11 hours earlier, around 12:30 a.m.

The investigators interviewed Pugh at the Atlanta Police Department’s office located within the airport. At the time of the interview, Pugh was accompanied by his supervisor and a Delta security officer. The investigators told Pugh why they wanted to speak with him and informed him that he was not under arrest. There is no evidence that Pugh was restrained in any way, or that he ever requested an attorney to be present or asked to stop the interview. During the interview, Pugh stated that he was at home in bed at the time of the armed robbery and that he did not get out of bed until his parents came to get him to take him to the East Point Police Department to report that his car had been stolen.

One investigator testified that, before the interview, he thought that Pugh could have been a victim of car theft and that someone had used his car during the armed robbery, and that the investigator expected the interview to only last a few minutes. However, when questioned about the theft of his vehicle, Pugh gave inconsistent statements concerning the circumstances of the alleged theft, began showing signs of extreme nervousness, materially changed his account of what happened, and failed to give a logical reason or explanation as to why he did not immediately report the theft of his vehicle.

Pugh had a black book bag with him at the interview, which he admitted to having with him at the time of the theft. The investigators asked for and obtained Pugh’s consent to examine its contents. The bag contained Pugh’s vehicle registration and insurance cards (things that are typically kept in a vehicle), as well as gloves. The investigators also observed red stains on his left hand consistent with stains that would come from a red dye pack. Based on the foregoing, as well as the fact that Pugh matched the physical description of one of the men involved in the armed robbery, Pugh was placed under arrest.

During the subsequent investigation, the police interviewed Pugh’s neighbor, Ricky Smith, who stated that, at about 10:30 on the morning of the armed robbery, he observed Pugh being dropped off at his home by another man. Smith’s statement, which he later confirmed through his testimony at trial, directly contradicted Pugh’s account of his whereabouts on the morning of the armed robbery. The police executed a search warrant for Pugh’s house and found a red stain in a bathroom trash can. The police were also able to determine that Pugh had a financial motive to commit the armed robbery, as Pugh was deeply in debt and had been sued in various lawsuits, and his wages were being garnished at the maximum rate.

Following a jury trial, Pugh was convicted on all charges for which he was indicted, but the trial court vacated his convictions for giving false statements to law enforcement. The remaining convictions for armed robbery are at issue on appeal.

1. Pugh contends that trial counsel rendered ineffective assistance by failing to impeach the testimony of Pugh’s neighbor, Ricky Smith, with a prior inconsistent statement. We discern no error.

In considering the trial court’s ruling on a claim of ineffective assistance of counsel, this Court accepts “the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011).

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation and footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001).

At trial, Smith testified that he observed a man drop Pugh off at his home at about 10:30 on the morning of the armed robbery. This testimony was significant because Pugh had told the investigators that he had been at home in bed all morning and that he did not get up until 11:00 a.m. when his parents came to pick him up. On cross-examination, Pugh’s trial counsel attempted to impeach Smith by presenting him with an “affidavit” that was not notarized which he had allegedly signed, in which Smith denied seeing Pugh that morning and denied telling the police that he had seen him. Trial counsel asked Smith if he recalled meeting with an investigator for the defense, Sherry Embry, and being presented with the document. Smith testified that he had never met Embry, that he had never seen the document before, and that he did not sign it. Smith further testified that the portion of the document which stated that he had not seen Pugh that morning was not true. Embry was not called as a witness. When trial counsel moved to admit the document into evidence as a prior inconsistent statement, the trial court excluded the purported affidavit because Smith denied making it and because the document was not properly authenticated.

When Pugh’s mother was later called as a witness for the defense, she testified that she went over to Smith’s house and asked him if he saw Pugh get out of a car on the morning of the armed robbery. Pugh’s mother further testified that, based on Smith’s response, she (not Embry) presented him with the prepared affidavit and that Smith signed it in her presence. This was the same document that trial counsel had sought to admit into evidence earlier. When trial counsel moved again to admit the document into evidence, the jury was excused from the courtroom, and the trial court had a discussion with counsel. During this discussion, the trial court found that the circumstances under which counsel was attempting to introduce the document were “extremely troubling and extremely irregular,” and the court stated that it was “very disturbed” by trial counsel’s explanation that he had misunderstood who had presented the document to Smith. The trial court lectured counsel about his lack of preparation for trial, given the fact that the inconsistent statement appeared to be a critical piece of information for the defense. Ultimately, the trial court excluded the statement from evidence, finding that Smith had not been given the opportunity to explain or deny the purported meeting with Pugh’s mother, and that it would be unfair to the prosecution to allow the prior inconsistent statement to come in under these circumstances.

At the hearing on the motion for new trial, Smith admitted that Pugh’s mother had presented him with the document and that he had signed it. But Smith further testified that the portion of the document which states that he had not seen Pugh that morning was untrue. Smith testified that he had seen Pugh, but clarified that he only saw him walking away from the man’s car and that he did not actually see him get out of the vehicle. Thus, even had trial counsel been able to admit the statement into evidence, Smith’s testimony concerning the statement would have still contradicted Pugh’s alibi defense. At trial, Pugh, his mother, and his father each testified that they had left together to go to the East Point Police Department before the time that Smith contends he saw Pugh walking away from the man’s car.

Under these circumstances, we cannot say that the exclusion of the inconsistent statement affected the outcome of the trial. See Taylor v. State, 282 Ga. 693, 696-697 (2) (c) (653 SE2d 477) (2007) (defendant could not show prejudice arising from failure to impeach witness with prior inconsistent statement, where there was no reasonable probability that the difference between witness’s prior statement and her in-court testimony would have affected the result of the trial).

Furthermore, given the other evidence of Pugh’s guilt, i.e., the use of his car in the armed robbery, his delay in reporting the alleged theft of his vehicle, his inconsistent and conflicting accounts of the circumstances surrounding the alleged theft of his vehicle, the stains found on his hand and in his home which were consistent with the red dye packs from the bank robbery, his financial motive to commit armed robbery, and the fact that he matched the physical description of one of the perpetrators, Pugh cannot show a reasonable probability that the results of the trial would have been different had the statement been admitted. Williams v. State, 312 Ga. App. 693, 695-696 (3) (719 SE2d 501) (2011).

Therefore, Pugh has failed to establish that he suffered prejudice as the result of counsel’s failure to impeach Smith with his prior inconsistent statement. “Failure to show prejudice from counsel’s allegedly deficient performance is fatal to an ineffectiveness claim.” (Citation omitted.) Moore v. State, 288 Ga. 187, 190 (2) (702 SE2d 176) (2010).

2. Pugh also contends that trial counsel rendered ineffective assistance by failing to file a motion to exclude the in-custody statements he made during his interview with investigators. Specifically, Pugh contends that suppression of his statements would have been warranted because he had not been advised of his Miranda rights at the time of questioning, and that he had been questioned by the investigators for approximately two-and-a-half hours in a coercive environment which would lead a reasonable person to conclude that he was not free to leave. We disagree.

When claiming ineffectiveness for failure to file a motion to suppress, an appellant must establish a strong showing that the damaging evidence would have been suppressed had the motion been filed. Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008).

The issue of whether a person is in custody for Miranda purposes is a “mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.” (Citation and punctuation omitted.) DiMauro v. State, 310 Ga. App. 526, 528 (1) (714 SE2d 105) (2011).

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable person in [Pugh’s] position would perceive his situation.

(Citations and punctuation omitted; emphasis supplied.) State v. Folsom, 285 Ga. 11, 12-13 (1) (673 SE2d 210) (2009). In other words, the proper inquiry focuses upon “the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer.” (Citation omitted.) Crawford v. State, 288 Ga. 425, 426 (2) (704 SE2d 772) (2011).

In this case, the investigators interviewed Pugh at the Atlanta Police Department’s office located within the airport. At the time of the interview, Pugh was accompanied by his supervisor and another employee. Pugh was advised that he was not under arrest. The officers were conducting a general investigation into the use of Pugh’s vehicle in the armed robbery and the circumstances surrounding the theft of his vehicle. At the start of the interview, the investigators did not consider Pugh a suspect. Pugh was never told that he was not free to leave during the interview, nor was there evidence that Pugh was restrained in any way. Under the totality of the circumstances, we conclude that a reasonable person in Pugh’s circumstances would not have concluded that he was in custody or otherwise deprived of his freedom. See Mosely v. State, 269 Ga. 17, 20 (3) (495 SE2d 9) (1998) (defendant was not entitled to be advised of Miranda rights where, at the time of questioning, officers were conducting a general investigation into a crime, defendant was not a suspect, and defendant was initially considered to be a victim). Furthermore, although the officers’ suspicions as to Pugh’s involvement in the armed robbery were aroused by Pugh’s statements during the interview, the officers never communicated to Pugh that he was under arrest or that he was not free to leave.

Decided July 15, 2013

Brian Steel, for appellant.

David McDade, District Attorney, Jeffrey M. Gore, Assistant District Attorney, for appellee.

We have previously held that “a custodial situation does not arise even if an officer believes he has probable cause to arrest a defendant, where the officer takes no overt step to communicate that belief.” (Footnote omitted.) Tobias v. State, 319 Ga. App. 320, 324-325 (1) (735 SE2d 113) (2012). In Tobias, we found that a defendant was not entitled to be advised oí Miranda rights where she was not in custody at the time of questioning, even though the interrogating officer had determined that she would be arrested. Id. at 321-325 (1). Since Pugh was not in custody at the time he made the statements, he was not entitled to Miranda warnings.

It is well settled that the “[f]ailure to pursue a meritless motion cannot be evidence of ineffective assistance.” (Citation omitted.) Banks v. State, 244 Ga. App. 191, 192 (1) (c) (535 SE2d 22) (2000). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       In ruling on the defendant’s motion for new trial, the trial court vacated the convictions and sentences for the two counts of giving a false statement based on the State’s failure to establish venue for those charges.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).