author: McFadden, Judge.

text:
    A14A1501.
    HARRIS v. THE STATE.
    (769 SE2d 749)
   McFadden, Judge.

After a jury trial, Loyce D. Harris was convicted of aggravated child molestation. He appeals, arguing that the state violated his rights by failing to provide him with a witness’s statement as required by Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and Georgia’s reciprocal discovery statutes; that the trial court erred by admitting hearsay testimony; and that the trial court erred by refusing to charge the jury on identification. We hold that Harris’s failure to object on Brady grounds or to seek relief bars his challenge regarding the witness’s statement; that even if the trial court erred by admitting hearsay, any error was harmless beyond a reasonable doubt; and that the trial court did not err by refusing to give Harris’s requested charges on identification. We therefore affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence shows that Harris dated the victim’s grandmother, with whom the victim lived. The five-year-old victim told her grandmother that, “Cash touched my pie-pie,” which is the name they used for the vagina. The grandmother testified that the victim referred to Harris as Cash. At the recommendation of the police, the grandmother took the victim to a child advocacy center. A forensic interviewer interviewed the victim, who told her that Cash had touched her vagina with his finger and put his penis in her vagina.

2. Witness statement.

During cross-examination, the victim’s uncle testified that, at the request of the assistant district attorney, he “wrote [a] statement and turned it in.” Harris’s attorney then asked the trial court, “may we approach regarding the statement that I never received?” The assistant district attorney objected to that characterization. The court responded, “There’s no need to approach,” and defense counsel answered, “Okay.” She then continued cross-examination. Harris argues that the state’s failure to provide him with the uncle’s written statement violated his due process rights under the federal and Georgia Constitutions because it was material impeachment evidence falling under Brady, and violated Georgia’s reciprocal discovery rules.

(a) Brady violation.

Harris argues that the state’s failure to provide him with the statement violated Brady. “No such objection was made at trial, and the defendant has waived his right to raise this objection on appeal.” Jones v. State, 258 Ga. 249, 250 (6) (368 SE2d 313) (1988) (failure to raise an objection based on Brady at trial waives the issue on appeal). Further, Harris learned of the statement at trial and “could, had he deemed it necessary, have sought a continuance to further investigate.” Walker v. State, 282 Ga. 703, 706-707 (4) (653 SE2d 468) (2007).

(b) Violation of reciprocal discovery statutes.

Harris argues that the state’s failure to provide him with the written statement violated Georgia’s reciprocal discovery statutes and the only just remedy is reversal. Harris correctly argues that OCGA § 17-16-4 (c) required the state to promptly notify him of this statement. That statute provides:

If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.

OCGA § 17-16-4 (c). As for remedies for the state’s violation, OCGA § 17-16-6 provides:

... [T]he court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

However, “[Harris] did not request any of these items of relief, but merely [asked to approach regarding the statement that counsel never received]. As [Harris] did not request any relief,” he is not entitled to reversal. Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997). We observe that Harris concedes that the state did not purposefully violate the statute.

3. Hearsay testimony.

Harris argues that the trial court erred by allowing a former law enforcement officer, who had investigated a similar transaction introduced against Harris, to testify about what the similar-transaction victim had told him. In the similar transaction, Harris was charged with child molestation and pled guilty to statutory rape. At Harris’s trial here, the former detective who investigated the similar transaction testified:

I went to the hospital where I started my investigation. I called DFACS; we notify DFACS anytime a child is involved in a rape. I got some information from the victim. I started my investigation. I interviewed some witnesses, and I also interviewed the victim. She advised me that her and two more juvenile females were riding bicycles and that Alonzo Harris [a name Harris was known by] grabbed her, drug her down into the woods where he attempted to rape her. She stated that he put his finger inside of her private parts; he also gave me a statement hisself [sic] that he did put his finger inside of her. He was charged with child molestation.

Harris argues that introduction of the similar-transaction victim’s testimonial statements violated his confrontation rights and that those statements were inadmissible hearsay. It is true that out-of-court statements are inadmissible if they are testimonial in nature:

The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. . . . [Statements made to police officers during an investigation qualify as testimonial.

Gay v. State, 279 Ga. 180, 181-182 (2) (611 SE2d 31) (2005) (citations and punctuation omitted). But see Hatley v. State, 290 Ga. 480, 484 (II) (722 SE2d 67) (2012) (“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”) (citation omitted). We conclude, however, that any confrontation-clause error was harmless beyond a reasonable doubt. See Griffin v. State, 292 Ga. 321, 324 (5) (737 SE2d 682) (2013).

The detective’s testimony that the victim said she was riding her bicycle does not implicate Harris whatsoever. See Bell v. State, 294 Ga. 443, 448 (3) (754 SE2d 327) (2014) (officer’s hearsay testimony regarding witness’s statement was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence and did not establish any fact related to defendant’s guilt). The testimony that the victim said Harris attempted to rape her is cumulative of his guilty plea to statutory rape. See Gay, supra, 279 Ga. at 182 (2) (admission of hearsay statement violated confrontation clause but was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence). The testimony that the victim said Harris “put his finger inside of her private parts” is cumulative of Harris’s admission to that act. Id. The testimony that the victim said Harris grabbed her and dragged her into the woods added nothing material and was merely incidental to the properly admitted evidence of the statutory rape conviction. See Horne v. State, 281 Ga. 799, 808-809 (5) (642 SE2d 659) (2007) (any confrontation clause violation caused by state’s leading questions in the presence of the jury to a co-indictee who had been granted immunity but refused to testify was harmless beyond a reasonable doubt because questions were not evidence and added nothing of material value that had not otherwise been properly admitted).

Harris also argues that the admission of the victim’s statements violated the Georgia statutory prohibitions against hearsay evidence. Assuming for purposes of appeal that there was error in this regard, any such error was harmless as detailed above.

4. Jury instruction.

Harris argues that the trial court erred by refusing to give two requested charges on identification. One of the charges concerned the reliability of identification and the other concerned the state’s burden to prove beyond a reasonable doubt the identity of Harris as the person who committed the crime. Harris argues that the victim was never reported to have identified Harris as the person she referred to as Cash regarding this incident. But the grandmother testified that the victim called Harris by the name “Cash,” and said that Cash had touched her.

“There is no requirement of our law that a trial judge warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime.” McLean v. State, 291 Ga. 873, 878 (5) (b) (738 SE2d 267) (2012) (citation and punctuation omitted) (ineffective assistance of counsel claim). The trial court charged the jury on the state’s burden of proof, the presumption of innocence, reasonable doubt, credibility of witnesses, and impeachment of witnesses. “Thus, the jury was instructed on the general principles of law underlying a defense of misidentification.” Id. See also Sullivan v. State, 242 Ga. App. 613, 615 (4) (530 SE2d 521) (2000) (trial court’s failure to instruct jury that state must prove identity beyond a reasonable doubt not error because court gave instruction that jurors must find beyond a reasonable doubt that the defendant committed the offenses charged in the indictment).

Decided March 6, 2015.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, M. April Wynne, Cania R. Brown-Gordon, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., concurs. Ray, J., concurs in Divisions 1, 2 and 4, and in the judgment in Division 3.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A14A1560.
    GRAHAM v. THE STATE.
    (769 SE2d 753)
   MCFADDEN, Judge.

After a jury trial, Alethea Graham was convicted of forgery in the first degree. She appeals, challenging the sufficiency of the evidence, the allowance of hearsay testimony, the constitutionality of the forgery statute, a jury charge on the uttering element of first degree forgery, the denial of an appeal bond, and the denial of her constitutional right to a speedy trial. But there was enough evidence to support the verdict, the testimony allowed was not hearsay, the constitutionality of the statute was not timely raised, the jury charge was a correct statement of the law, and the trial court did not abuse its discretion in denying an appeal bond. Accordingly, we affirm in part. However, the trial court did not make the requisite findings of fact and conclusions of law in determining the constitutional speedy trial issue, and we thus remand the case for the trial court to enter a proper order on that issue.

1. Sufficiency of the evidence.

Graham enumerates that the trial court erred in denying her motions for both a directed verdict of acquittal and a new trial because there was insufficient evidence to support the verdict.

Whether an appellant is asking this court to review a lower court’s refusal to grant a new trial or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.

Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014) (citations omitted).

So viewed, the evidence shows that Graham’s father, Nathaniel Graham, Sr., lived in the High Point Crossing Apartments in Augusta, Georgia. On March 31,2009, he fell inside his apartment and suffered a brain injury. He was admitted to the Veterans Administration hospital in Augusta. According to a hospital administrator, Graham represented herself as being the guardian of her father, and the hospital had a document on file that purportedly appointed her as such.

Approximately two weeks after the father’s injury, Graham’s brother Nathaniel and sister Lakenya went to visit their father in the hospital, and a hospital employee showed them the purported guardianship document. The document appeared to be letters of guardianship issued in 2002 by the Probate Court of Gwinnett County, finding Nathaniel Graham, Sr., to be incapacitated and designating Graham as his guardian. Graham’s siblings were suspicious of the document’s authenticity because their father had never lived in Gwinnett County.

Graham’s sister took a copy of the purported letters of guardianship to the probate court in Gwinnett County. The chief clerk of the probate court testified that the document appeared suspect, did not appear to be any kind of record from that court, had markings and stamps that are not used by that court, and had an unrecognizable judge’s signature. The chief clerk further testified that she conducted a search of the probate court records going back to the 1950s and determined that Graham’s name did not appear anywhere in the records and that no guardianship had ever been filed for Nathaniel Graham, Sr., in that court.

The Judge of the Gwinnett County Probate Court testified that he had not signed the Graham guardianship document and that his purported signature on it was a forgery. He also testified, and the state introduced documentary evidence showing, that the document appeared to be an altered copy of actual letters of guardianship that had been issued by the judge in an unrelated case involving a different ward and guardian.

An employee of the Richmond County Probate Court testified that in April 2009, a woman matching Graham’s description came to the court with paperwork from the Gwinnett County Probate Court purportedly showing that she was the guardian of her father. The woman inquired about transferring the guardianship to Richmond County. But the employee thought the papers looked odd and had been altered, so she contacted the Gwinnett court and learned that the documents were not valid. The employee testified that the purported Gwinnett County letters of guardianship appointing Graham as her father’s guardian may be the document that she had seen.

The former assistant manager of the High Point Crossing Apartments testified that after Graham’s father was injured and taken to the hospital, Graham came to the apartment complex office with paperwork seeking access to her father’s apartment. The manager put the papers in the father’s file and gave Graham a key to the apartment. When the assistant manager subsequently looked in the file, she saw the purported letters of guardianship from Gwinnett County, which had not previously been in the file. She later learned that the guardianship document was fake.

The prior version of the forgery statute, OCGA § 16-9-1, applies to this case. It provides:

[A] person commits the crime of first-degree forgery if “with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.”

Martinez v. State, 325 Ga. App. 267, 269 (1) (a) (750 SE2d 504) (2013) (quoting OCGA § 16-9-1 (a) (2007)).

The crux of Graham’s challenge to the sufficiency of the evidence is that there was no direct eyewitness testimony that she possessed or uttered the forged letters of guardianship. But “[f]orgery .. . may be proved by circumstantial evidence.” Hudson v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212) (1988) (citations and punctuation omitted). In this case, Graham was named as the guardian in the fraudulent letters of guardianship, there was direct evidence that she claimed to be her father’s guardian, and as recounted above, there was ample circumstantial evidence that she possessed and uttered that falsified document. Accordingly, the evidence “was sufficient for a rational trier of fact to find [Graham] guilty beyond a reasonable doubt of forgery in the first degree.” Martinez, supra at 270 (1) (a) (citations and punctuation omitted). See also Hudson, supra at 689-690 (2) (although circumstantial, ample evidence to support guilty verdict as to first degree forgery).

2. Hearsay.

In three separate enumerations, Graham argues that the trial court erred in allowing her siblings and a hospital administrator to give hearsay testimony about a hospital employee’s statement that Graham had presented the purported guardianship document to the hospital. However, as the state noted and as the trial court correctly found, the testimony was not hearsay because it was not offered to prove the truth of the matter asserted.

OCGA § 24-8-801 (c) provides: “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, the testimony concerning the out-of-court statement was not offered to prove that Graham had given the falsified document to the hospital. Rather, it was offered to explain how Graham’s siblings learned of the document and their sister’s purported guardianship, and to explain their investigation into the authenticity of the document. Accordingly, the testimony did not constitute hearsay because the state did not offer the “words for the truth of their content.” Herieia v. State, 297 Ga. App. 872, 875 (2) (678 SE2d 548) (2009) (citation omitted).

And contrary to Graham’s confrontation clause argument, since the testimony was not hearsay, it did not violate her constitutional right to confront witnesses.

The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Under these circumstances, the trial court did not violate [Graham’s] right to confront and cross-examine a witness by admitting the [non-hearsay] testimony of [the witnesses].

Jennings v. State, 285 Ga. App. 774, 776 (1) (648 SE2d 105) (2007) (citations and punctuation omitted).

3. Constitutional challenge to forgery statute.

Graham complains that the trial court erred in denying her motion in arrest of judgment challenging the forgery statute as unconstitutionally vague. However, the Supreme Court of Georgia, in an order transferring the case to this court, ruled that Graham had “waived her constitutional challenge to the forgery statute under which she was convicted by raising it for the first time in a motion in arrest of judgment. Perez-Castillo v. State, 275 Ga. 124 (562 SE2d 184) (2002).” Accordingly, this claim of error presents nothing for us to review.

4. Jury charge.

Graham contends that the term “utter” means only to speak, and therefore the trial court erred in charging the jury that the first degree forgery element of “[ujttering is synonymous with the words pass or tender.” However,

this objection is without merit because the words “pass or tender” are synonymous with the words “utter and publish.” If the accused uttered the forged [document], he published it. If he passed it, he uttered and published it; and if he uttered and published and passed it, he necessarily tendered it.

Smith v. State, 13 Ga. App. 663, 667 (79 SE 764) (1913). See also Warren v. State, 309 Ga. App. 596, 597 (2) (711 SE2d 108) (2011) (forged document may be uttered by offering directly or indirectly, by words or actions, such document as good). Accordingly, “it was not erroneous for the trial court to charge using the additional... term[s pass or tender].” Crowder v. State, 218 Ga. App. 630, 632 (3) (462 SE2d 754) (1995).

5. Appeal bond.

Graham claims that the trial court erred in denying her request for an appeal bond. The claim is without merit.

“[T]here is no constitutional right to bond pending appeal.” Browning v. State, 254 Ga. 478, 479 (2) (330 SE2d 879) (1985) (citations omitted). However, under OCGA § 5-6-45 (a), a criminal defendant may be given an appeal bond if the sentence is bailable. The question whether to grant bond after conviction is committed to the discretion of the convicting court, and an appellate court will not control that discretion unless it has been abused. Wade v. State, 218 Ga. App. 377, 378 (2) (461 SE2d 314) (1995). Here, Graham has made no showing of such an abuse of discretion in the denial of her request for an appeal bond.

6. Speedy trial.

Graham claims she was denied her constitutional right to a speedy trial. The record shows that Graham was indicted in June 2009. Nearly four years later, in March 2013, Graham filed a constitutional speedy trial demand and alternatively sought dismissal of the charges for the delay. The record does not contain an order explicitly denying the motion to dismiss the charges, but the trial court implicitly denied the motion by proceeding with a jury trial on April 23,2013. Graham claimed a denial of her constitutional right to a speedy trial in her motion for new trial, which the trial court summarily denied.

Decided March 6, 2015

Michael B. King, for appellant.

Ashley Wright, District Attorney, Titus T. Nichols, Natalie S. Paine, Assistant District Attorneys, for appellee.

The framework for determining constitutional speedy trial claims requires the trial court to apply the two-tier analysis enunciated in Barker [v. Wingo, 407 U. S. 514, 522-523 (II) (92 SCt 2182, 33 LE2d 101) (1972)], and Doggett v. United States, 505 U. S. 647, 651 (112 SCt 2686, 120 LE2d 520) (1992).

Cawley v. State, 324 Ga. App. 358, 359.(750 SE2d 428) (2013) (citations omitted).

The weighing of the Barker factors is committed to the substantial discretion of the trial court, and its ultimate judgment is reviewed on appeal only for an abuse of that discretion. It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this [c]ourt to review. Accordingly, we have vacated and remanded cases where the trial court failed to enter written findings of fact and conclusions of law in accordance with Barker.

Cawley, supra at 360 (citations and punctuation omitted).

In this case, there is no order from the trial court that contains such findings of fact and conclusions of law. Accordingly, “we affirm the finding of guilt in light of our rulings above, and we remand for entry of a proper order addressing the speedy trial motion pursuant to Barker v. Wingo.” Smith v. State, 325 Ga. App. 405, 411 (5) (750 SE2d 758) (2013) (footnote omitted). See also Culbreath v. State, 328 Ga. App. 153, 159-162 (4) (761 SE2d 557) (2014).

Judgment affirmed in part and case remanded with direction.

Andrews, P. J., and Ray, J., concur.

       The amended Code section became effective July 1, 2012, and applies to offenses occurring on or after that date. See Ga. L. 2012, p. 899, § 9-1.


text:
    A14A1820.
    HUNTLEY v. THE STATE.
    (769 SE2d 757)
   McFadden, Judge.

After a jury trial, Clemon Huntley was convicted of sale of cocaine, distributing cocaine near a school and distributing cocaine near a park. He appeals, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. However, there was enough evidence to support the jury’s verdict of guilt beyond a reasonable doubt and Huntley has not shown that his trial counsel’s performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this [cjourt determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this [c]ourt. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this [c]ourt will uphold the jury’s verdict.

Stillwell v. State, 329 Ga. App. 108 (764 SE2d 419) (2014) (citation omitted).

So viewed, the evidence shows that on November 29, 2010, Huntley drove his friend Kevinall Wheeler to and from two drug transactions. Police used a confidential informant to set up the purchases of cocaine from Wheeler. At approximately 2:30 in the afternoon, Huntley drove Wheeler to the site of the arranged drug sale, which was less than 1,000 feet from both a public park and a school. The confidential informant came to the driver’s side window of the car, where Huntley was sitting. The transaction took place directly in front of Huntley, as Wheeler passed the drugs across Huntley’s body to the informant in exchange for money. Huntley then drove Wheeler away from the scene of the drug sale. A short time later, Wheeler contacted the confidential informant and offered to sell him more cocaine. Huntley then drove Wheeler to the same location as the first transaction, and Wheeler again sold cocaine to the confidential informant, after which Huntley drove Wheeler away from the transaction site.

Huntley argues that the evidence is insufficient to support his convictions because Wheeler is the person who directly sold cocaine to the confidential informant. However, the evidence was sufficient to show that Huntley was a party to the crimes.

Aparticipant to a crime may be convicted although he is not the person who directly commits the crime. Aperson who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997) (citations omitted).

Whether [Huntley] was a party to the crimes and aided and abetted [Wheeler] in the [commission of the drug offenses]... is a jury question. Here, the record contains evidence from which a jury could find that [Huntley] was the ... driver for [Wheeler to get to and from the drug transactions], and thus, was a party to the crimes.

Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006) (citations omitted). See also Thornton v. State, 292 Ga. 87, 88 (2) (734 SE2d 393) (2012) (evidence sufficient to prove defendant, as driver of getaway vehicle, was party to the crimes of armed robbery and burglary); Wade v. State, 305 Ga. App. 819, 822 (701 SE2d 214) (2010) (evidence sufficient to support conviction as a party to the crime of possession of cocaine where defendant drove his nephew to location for purpose ofpurchasing drugs); Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003) (affirming defendant’s conviction as a party to the crime of burglary where defendant drove perpetrator to and from the burglary scene).

2. Ineffective assistance of counsel.

Huntley claims that his trial counsel was ineffective in failing to move for a directed verdict based on insufficient evidence, in failing to object to the admissibility of videotapes of the drug transactions, and in failing to advise Huntley of the law regarding party to a crime. To prevail on such claims, Huntley “was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different.” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (citations and punctuation omitted). However, Huntley has not made these showings.

Decided March 6, 2015.

Joseph E. Griffin, for appellant.

(a) Failure to move for directed verdict.

As for counsel’s failure to move for a directed verdict, “we determined in Division 1 [that] the evidence was sufficient to support the jury’s verdict. [Thus, t]he failure to raise a meritless motion for a directed verdict, as a matter of law, is not ineffective assistance of counsel.” Hendrix v. State, 328 Ga. App. 819, 821 (2) (a) (762 SE2d 820) (2014) (citation and punctuation omitted).

(b) Failure to object to videotape evidence.

Counsel testified at the motion for new trial hearing that she did not object to the videotapes of the drug transactions because the defense strategy was not to deny that the transactions took place, but to show that Huntley was merely present at the scene and did not participate in the transactions. She explained that “there was never any issue or part of our defense that a transaction had not taken place. It was simply that Mr. Huntley was completely not involved in it.” Such decisions regarding when and how to raise objections are generally matters of trial strategy. Sowell v. State, 327 Ga. App. 532, 540 (4) (a) (759 SE2d 602) (2014). And “[a]s a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citation and punctuation omitted).

(c) Failure to explain law of party to a crime.

Contrary to Huntley’s claim, his trial attorney testified that she thoroughly explained the concept of party to a crime to him, that every time they talked she informed him how he could be convicted as a party to the crimes, and that Huntley “understood party to a crime.” Indeed, Huntley himself acknowledged at the motion for new trial hearing that his counsel discussed the concept of party to a crime with him.

On appellate review of an ineffective assistance claim, we must accept the trial court’s factual findings and credibility determinations unless clearly erroneous. Hill, supra. Because there was ample evidence to support a finding that trial counsel fully explained the law of party to a crime to Huntley, we “find no error in the trial court’s rejection of [Huntley’s] claim of ineffective assistance. [Cit.]” Id.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.


author: Miller, Judge.

text:
    A14A1937.
    In re PATTERSON.
    (769 SE2d 762)
   Miller, Judge.

Attorney Jackie G. Patterson appeals from the trial court’s order holding him in contempt of court and ordering him to pay a $100 fine for missing his client’s scheduled arraignment. Patterson contends that the fine was not justified because the court specifically found that his absence was due to negligence, not wilful disobedience. We agree.

On appeal of a criminal contempt conviction the appropriate standard of appellate review 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. Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court. We have repeatedly held that an attorney may be held in direct criminal contempt for wilfully failing to respond to the calendar call or to the call of a case for trial.

(Citations omitted.) In re Beckstrom, 295 Ga. App. 179, 179-180 (671 SE2d 215) (2008).

So viewed, the evidence shows that Patterson was retained to represent a criminal defendant on a charge of driving with a suspended license. The client’s arraignment was scheduled for March 13, 2014, but Patterson did not appear in court for the call. In light of Patterson’s absence, the trial court rescheduled the arraignment for April 4. The court also scheduled a hearing as to whether Patterson should be held in contempt for his failure to appear on March 13.

At the contempt hearing, attorney Patterson told the trial court that he missed the March 13 arraignment because the event did not appear on his phone calendar. He explained that he had inadvertently recorded the event under an incorrect calendar on his computer, a calendar that was not programmed to synchronize with his phone. The trial court held Patterson in contempt, ruling, “All right, Mr. Patterson, I don’t find your conduct to be willfully contentious of the Court. I find it to be negligent. I fine you $100.” In its written order, the court specifically found that Patterson had been “negligent in his duties” by failing to appear for the arraignment and not filing a conflict letter.

Decided March 6, 2015.

Jackie G. Patterson, pro se.

John A. Pipkenlll, Solicitor-General, Brian M. Johnston, Jefferson F. Upchurch, Assistant Solicitors-General, for appellee.

On appeal, Patterson argues that the fine was not a lawful penalty because the trial court specifically found that he was not wilfully contemptuous. We agree.

“The basis for a contempt action is a ‘wilful’ refusal to comply with a judgment or order of the court.” (Citations omitted.) Griggers v. Bryant, 239 Ga. 244, 246 (2) (236 SE2d 599) (1977). Accordingly, to hold a party in contempt, the court must find that his disobedience was wilful. See DeKalb County v. Adams, 262 Ga. App. 243, 247 (3) (585 SE2d 178) (2003) (physical precedent only). Here, the trial court specifically found that Patterson’s failure to appear at the March 13 arraignment was negligent, but not wilful. In light of this finding, the trial court erred by holding Patterson in contempt.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.


author: Phipps, Chief Judge.

text:
    A14A2163.
    WILLIAMS v. THE STATE.
    (769 SE2d 760)
   Phipps, Chief Judge.

Alfred Williams pled guilty to armed robbery and was sentenced to 20 years, to serve 15 of those years in confinement. Acting pro se, Williams appeals the orders of the Superior Court of Coffee County denying his joint motion to modify sentence, for out-of-time withdrawal of his guilty plea, and for the appointment of counsel. Finding no error, we affirm the orders.

A review of the record shows that following his indictment on one count of armed robbery, Williams, while represented by an assistant public defender, entered into a negotiated plea agreement in July 2008. At the hearing in which Williams entered his plea, his attorney announced that “[t]he plea offer is twenty, serve fifteen,” and that Williams is “fine with the plea offer and he wants to go ahead and plea.” After hearing the factual basis for the charge and examining Williams extensively about such matters as his understanding of his rights, the negotiated sentence, and the voluntariness of the plea, the court sentenced Williams to 20 years, to serve 15 years in confinement, with the remainder of the sentence to be served on probation. The court then asked Williams whether, having heard the sentence, he wanted to withdraw the guilty plea. Williams replied that he did not. When the court asked if he was sure, Williams replied that he was “[p]ositive.”

On March 26, 2014, Williams, acting pro se, filed a “Motion to Modify Sentence; Motion for Out-Of-Time Withdrawal Of Guilty Plea; [and] Motion For Appointment Of Counsel” to represent him “in this matter.” His appeal is from the May 8, 2014 orders denying those motions.

1. Williams contends that the court erred by denying his motion to modify his sentence. He asserts that his trial counsel rendered ineffective assistance because counsel “misled [Williams] to believe that if he entered a plea of guilty to the charge [ ] he would only receive a ten (10) year sentence and would be out of prison soon.”

Pursuant to OCGA § 17-10-1 (f)^] a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence. A sentence is void if the court imposes punishment that the law does not allow. To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must affirmatively demonstrate that the sentence imposes punishment not allowed by law.

When Williams’s sentence was imposed in 2008, the Superior Court of Coffee County had two terms of court each year. More than five years passed before Williams filed the motion to withdraw his plea. Thus, Williams filed his motion outside the statutory period.

Williams has not demonstrated that the sentence imposed is void. A sentence is not void if it “falls within the statutory range of punishment.” Williams’s 20-year sentence falls within the statutory range of punishment for armed robbery, and thus the sentence is not void. Accordingly, the court did not err by denying the motion to modify sentence.

2. Williams contends that the trial court erred by denying his motion for an out-of-time withdrawal of his guilty plea. He asserts that his guilty plea was not knowingly, intelligently or voluntarily made, because his counsel provided ineffective assistance.

“The trial court’s authority to grant a motion to withdraw a guilty plea ends after the expiration of the term of court during which the plea was entered.” Williams’s motion to withdraw his guilty plea, filed more than five years after he entered the plea, was filed too late to give the trial court any authority to allow the withdrawal of the plea. Accordingly, the trial court’s denial of Williams’s motion to withdraw his guilty plea is affirmed.

3. The trial court did not err by denying Williams’s motion for the appointment of counsel to assist him in pursuing his untimely filed motions to modify the sentence and to withdraw his guilty plea.

Judgments affirmed.

Ellington, P. J., and McMillian, J., concur.

Decided March 6, 2015.

Alfred T. Williams, pro se.

Bradley L. Collins, District Attorney, George E. Barnhill, Richard E. Currie, Assistant District Attorneys, for appellee.

       OCGA § 17-10-1 (f) provides:
      Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. . . .

        Rooney v. State, 318 Ga. App. 385-386 (734 SE2d 104) (2012) (footnote omitted; emphasis supplied).

       Williams was sentenced in July 2008, which was during the March 2008 term of court for the Superior Court of Coffee County. See OCGA § 15-6-3 (41) (D) (2007). The second term of court commenced in October 2008. Id.

       See Reynolds v. State, 272 Ga. App. 91, 94 (1) (611 SE2d 750) (2005).

        Gholston v. State, 327 Ga. App. 790, 791 (761 SE2d 189) (2014) (punctuation omitted).

       In this case, the armed robbery was committed on June 5, 2007. See OCGA § 16-8-40 (b) (2007) (“A person convicted of the offense of robbery shall be punished by imprisonment for not less than one nor more than 20 years.”).

       See Reynolds, supra at 94 (2).

        Brown v. State, 280 Ga. 658 (1) (631 SE2d 687) (2006) (citations and punctuation omitted).

       Williams’s guilty plea was entered in July 2008, during the March 2008 term of court. See footnote 3, supra. See Rhodes v. State, 296 Ga. 418, 419 (1) (768 SE2d 445) (2015); Brown, supra (trial court’s denial of motion to withdraw a guilty plea was affirmed where eight years had passed before appellant moved to withdraw the plea; trial court had no authority to permit withdrawal of plea after the term of court in which the plea was entered had expired); see generally Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008).

       See Rhodes, supra at 419 (1) (“appellant was not entitled to the appointment of counsel to assist with his untimely filed motion” to withdraw his guilty plea or other motions he filed to substantially challenge his convictions); Pierce v. State, 289 Ga. 893, 894 (1) (717 SE2d 202) (2011) (because indigent defendant had not filed a timely motion to withdraw his guilty plea, which would have triggered the right to appointed post-conviction counsel, and an indigent defendant is not entitled to appointed counsel to pursue a motion to vacate a void sentence or an out-of-time appeal, trial court did not err by failing to appoint counsel).


author: BARNES, Presiding Judge.

text:
    A14A2007.
    BRAZEAL v. NEWPOINT MEDIA GROUP, LLC.
    (769 SE2d 763)
   BARNES, Presiding Judge.

This case involves a contractual dispute between Plaintiff David Brazeal and his former employer, Defendant NewPoint Media Group, LLC, regarding whether Brazeal was owed severance pay after NewPoint declined to renew his employment contract for an additional one-year term. The trial court denied Brazeal’s motion for summary judgment, and granted NewPoint’s cross-motion for summary judgment, concluding that NewPoint was not required to pay severance to Brazeal as a matter of law. In reaching this conclusion, the trial court reviewed Brazeal’s employment contract and determined that it plainly and unambiguously distinguished between the nonrenewal of his contract at the end of a term and the termination of his employment without cause, requiring severance pay only in the latter circumstance. Brazeal now appeals. For the reasons discussed below, we affirm.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” (Citation and punctuation omitted.) Grot v. Capital One Bank (USA), 317 Ga. App. 786, 793 (6) (732 SE2d 305) (2012). On appeal from a trial court’s grant or denial of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). So viewed, the record shows as follows.

Brazeal was hired as chief financial officer (“CFO”) of NewPoint pursuant to an employment agreement dated June 28, 2012 (the “Agreement”). Section 1 of the Agreement provided that Brazeal’s initial term of employment would be for one year and would automatically renew for additional one-year periods unless Brazeal or NewPoint provided to the other party written notice of “non-renewal”:

1. Term. The term of Employee’s employment will commence (the “Start Date”) on the later of (a) the date of this Agreement and (b) the date on which the Company acquires substantially all of the assets of Network Communications, Inc. (the “Seller”), and continue for a period of one year (the “Initial Term”) and shall thereafter automatically renew for additional twelve (12) month periods (each, a “Renewal Term”) unless written notice of non-renewal is given by one party to the other at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, as applicable. Employee’s actual term of employment by the Company under this Agreement is referred to as the “Term.” The provisions of Sections 8 through 11 hereof shall survive the termination of Employee’s employment with the Company in accordance with their respective terms.

(Emphasis in original.)

“Notwithstanding Section 1,” Section 6 of the Agreement provided NewPoint with the ability to terminate Brazeal’s employment at any time “for any reason or for no reason whatsoever, with or without Cause,” and Brazeal with the ability to resign his employment at any time “for any reason or for no reason whatsoever,” if certain notice requirements were met:

6. Ability to Terminate. Notwithstanding Section 1, Employee understands and agrees that the Company reserves the right upon thirty (30) days prior written notice (which notice will not be required in the event of termination for Cause, in which case termination shall be effective on the date of the notice) to terminate Employee’s employment with the Company at any time for any reason or for no reason whatsoever, with or without Cause. Likewise, Employee may Resign his employment with the Company at any time (upon thirty (30) days prior written notice) for any reason or for no reason whatsoever. Employee’s employment by the Company will automatically terminate upon Employee’s death or Permanent Disability.

Section 7 of the Agreement then addressed the obligations of the parties upon “termination” of Brazeal’s employment, including a subsection addressing NewPoint’s obligation to pay severance to Brazeal in the event of his “termination . . . without Cause”:

7. Termination Obligations.
(b) Following the Company’s termination of Employee’s employment without Cause, . . .
(i) the Company will continue to pay Employee, in accordance with the Company’s usual payroll practices and subject to all applicable withholding and deductions, Employee’s then current Base Salary for a period of nine (9) months (the “Severance Period”).

(Emphasis in original.)

Additionally, Section 8 of the Agreement addressed Brazeal’s obligation to refrain from disclosing and using certain confidential and proprietary information belonging to NewPoint, and Section 9 gave NewPoint certain rights, title, and interest in Brazeal’s works of authorship created for the benefit of the company during the term of his employment. Section 10 contained restrictive covenants agreed to by Brazeal, including noncompete and nonsolicitation clauses, and Section 11 contained a “non-disparagement” clause whereby Brazeal agreed not to engage in any conduct or make any statements disparaging to NewPoint.

Lastly, Section 14 of the Agreement contained a list of definitions. “Cause” was defined to include dishonesty in business dealings with NewPoint, diversion of corporate opportunities, certain criminal arrests and convictions, neglect of duties, failure to comply with directives from NewPoint’s board of directors, intentional misrepresentations or omissions, and the material breach of any provision of the Agreement. Section 14 did not define “termination.”

Brazeal began serving as CFO at NewPoint in June 2012, but in a March 2013 letter, NewPoint’s board of directors notified him that the company would not be renewing his initial one-year term of employment for an additional term “in accordance with Section 1 of the Agreement.” The letter complied with the 90-day notice requirement imposed by Section 1 of the Agreement. Brazeal’s last day as CFO was in late June 2013.

After NewPoint refused to pay him any severance, Brazeal sued the company for, among other things, breach of contract. Brazeal’s complaint alleged that NewPoint owed Brazeal nine months of severance pay under Section 7 of the Agreement because it declined to renew his initial term of employment without “Cause,” as that term was defined in the Agreement. NewPoint answered, denying that it owed Brazeal any severance pay based on its decision not to renew his initial term of employment under Section 1 of the Agreement.

Brazeal moved for summary judgment on his contract claim, and NewPoint filed a cross-motion for summary judgment. The parties presented competing interpretations of when severance pay was owed under the Agreement. According to Brazeal, the Agreement was ambiguous as to whether NewPoint had to pay severance to him under Section 7 if it chose to end his employment “without Cause” through a “non-renewal” of his term of employment under Section 1. In light of this ambiguity, Brazeal contended that the rules of contract construction and parol evidence ought to be consulted and would lead to the resolution of any ambiguity in his favor so as to require the payment of severance.

In contrast, NewPoint contended that by its plain and unambiguous terms, the Agreement drew a distinction between the “non-renewal” of Brazeal’s initial term of employment under Section 1 and the “termination” of his employment “without Cause” under Section 6, and that the requirement of paying severance in Section 7 arose only if NewPoint terminated Brazeal’s employment “without Cause” under Section 6. According to NewPoint, because Brazeal’s initial term of employment was not renewed, and because severance was required in the event of “termination... without Cause” but not in the event of a “non-renewal,” Brazeal was not entitled to severance pay as a matter of law.

The trial court agreed with NewPoint’s interpretation of the Agreement, resulting in the court denying Brazeal’s motion for summary judgment and granting NewPoint’s cross-motion for summary judgment. In its order, the trial court concluded that the Agreement drew a distinction between a decision by either party not to renew Brazeal’s initial term of employment for another one-year term (Section 1), and a decision to terminate Brazeal “without Cause” during his term of his employment (Section 6), with severance pay being owed only in the latter circumstance (Section 7). Because the undisputed record showed that NewPoint, through its March 2013 letter, had exercised its right not to renew Brazeal’s initial term of employment in accordance with the notice requirements of Section 1, the trial court determined that Brazeal was not entitled to severance pay as a matter of law. This appeal followed in which Brazeal challenges the trial court’s construction of the Agreement.

We conclude that the trial court properly construed the Agreement to not require the payment of severance to Brazeal. Construing the language of a contract “presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construction.” Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005). The “cardinal rule” of construction is to ascertain the contracting parties’ intent, OCGA § 13-2-3, and “where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” (Citation and punctuation omitted.) Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 607 (3) (675 SE2d 314) (2009). “To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred.” Municipal Elec. Auth. of Ga., 276 Ga. App. at 866 (1). Moreover, “a contract should not be construed in a manner that would render any of its provisions meaningless or mere surplusage.” (Citation and punctuation omitted.) Olde Towne Tyrone v. Multibank 2009-1 CRE Venture, 326 Ga. App. 322, 329 (1) (b) (756 SE2d 558) (2014).

In Kushner v. Southern Adventist Health & Hosp. System, 151 Ga. App. 425, 426-427 (1) (260 SE2d 381) (1979), we addressed whether an employer’s decision not to renew an employee’s contract for an additional term constituted a “termination” under the terms of that contract. The employment contract in Kushner contained two subparagraphs relevant to the analysis: Subparagraph 1 addressed the “non-renewal” of the employee’s contract for an additional term (which required only that notice be given to the employee), and Subparagraph 2 addressed the “termination” of the employee during his term of employment (which required prior consultation and a hearing). Id. The employer provided notice to the employee that it was not renewing the initial term of his employment, but failed to provide him with a hearing. Id. The employee then sued, claiming that he was entitled to a hearing, or that, at a minimum, the contract was ambiguous on this point. Id. We rejected the employee’s argument:

The construction . . . urged by [the employee] is both unreasonable and unnatural. Subparagraph 1 deals exclusively with renewal and nonrenewal of the contract. Sub-paragraph 2 is concerned with “termination” of the contract “during” a three-year period. While, conceptually, nonrenewal might be considered a form of termination of a contract, this categorization is of no consequence where the parties to an agreement deal with nonrenewal and termination as separate matters. Where the language is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as made.

(Emphasis supplied.) Id. at 427 (1). Thus, because the employment contract in Kushner contained two separate paragraphs setting forth different procedural requirements for “non-renewal” and “termination,” we held that the two terms could not be treated as synonymous. Id.

Kushner controls the outcome of the present case. Section 1 of the Agreement allows either party to decline to renew Brazeal’s employment contract at the end of a term, if written notice is provided at least 90 days before the term ends, while Section 6 allows NewPoint to “terminate” Brazeal “without Cause” at any time during his employment if the company provides 30 days written notice to Brazeal before his termination. Therefore, under the Agreement, “non-renewal” and “termination . . . without Cause” give rise to different procedural requirements, and, in accordance with the reasoning of Kushner, the two concepts cannot be treated as synonymous. Indeed, to eliminate the distinction between the two concepts would be to violate the well-established principle that each provision of a contract “is to be given effect and interpreted so as to harmonize with the others” in a manner that does not lead to redundancy. Thomas v. B & I Lending, 261 Ga. App. 39, 42 (1) (581 SE2d 631) (2003). See Woodbery v. Atlas Realty Co., 148 Ga. 712, 715 (98 SE 472) (1919) (“[N]one of the words [in a contract] are to be considered as redundant, if a reasonable intendment can be given them.”).

Because “non-renewal” under Section 1 and “termination . . . without Cause” under Section 6 must be treated as separate and distinct concepts under the rules of construction and the reasoning of Kushner, NewPoint was not required to pay severance to Brazeal when it declined to renew his initial term of employment pursuant to Section 1 of the Agreement. This is because severance pay is owed under Section 7 of the Agreement only in the event of “termination... without Cause.” Hence, when Sections 1, 6, and 7 of the Agreement are interpreted so as to harmonize with one another, it is clear that NewPoint did not breach the Agreement in failing to pay nine months of severance to Brazeal after the “non-renewal” of his initial term of employment, as the trial court correctly concluded.

Our conclusion that Section 7 of the Agreement was not intended to apply to the “non-renewal” of Brazeal’s initial term of employment under Section 1 is buttressed by the fact that Section 1 expressly incorporates the obligations imposed by Sections 8-11 of the Agreement. Thus, when the parties wanted to impose additional obligations in the context of the “non-renewal” of Brazeal’s term of employment, they knew how to do so. It follows that when the parties failed to add the termination obligations imposed by Section 7 to the list of obligations incorporated into Section 1, “we must presume that [their] failure to do so was a matter of considered choice.” (Citation and punctuation omitted.) Auto-Owners Ins. Co. v. Parks, 278 Ga. App. 444, 447 (1) (629 SE2d 118) (2006).

Brazeal argues, however, that the Agreement is ambiguous as to whether the obligation to pay severance imposed by Section 7 for “termination... without Cause” should apply to the “non-renewal” of his term of employment under Section 1, given that “termination” is never defined in the Agreement, and the dictionary definition of “termination” is broad enough to encompass the “non-renewal” of an employment contract. See Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/termination (defining “termination” as “an act of ending something” or “the act of making a person leave a job: the act of firing or dismissing someone”). See also Black’s Law Dictionary (9th ed. 2009) (defining “termination” to include “[t]he act of ending something” and “[t]he complete severance of an employer-employee relationship”). Brazeal also emphasizes that “non-renewal” and “termination” have been considered equivalent by some courts in other contexts, such as employment discrimination. See, e.g., Saridakis v. South Broward Hosp. Dist., 681 FSupp.2d 1338, 1348 (S.D. Fla. 2009) (“[T]he majority of courts in recent years have deemed non-renewal the equivalent of termination, and therefore an adverse employment action for purposes of a Title VII discrimination analysis.”).

Brazeal’s argument is misplaced. The fact that “termination” is not expressly defined in the Agreement or can have a broader meaning in other contexts does not change the fact that Sections 1 and 6 of the Agreement, when construed together, make clear that a “termination . . . without Cause” is a separate and distinct concept from the “non-renewal” of Brazeal’s term of employment, as previously explained. A word or phrase in a contract cannot be considered in the abstract or in a vacuum, but instead must be gauged by the words that surround it. See Techwerks v. Retail Technologies Corp., 235 Ga. App. 144, 145 (509 SE2d 84) (1998) (“[A] contract should be construed by examining the entire agreement, not by speculating about isolated words, clauses or provisions thereof.”).

Brazeal also focuses on the phrase “ [n] otwithstanding Section 1” found at the beginning of Section 6 and asserts that it means “in spite of.” According to Brazeal, use of this phrase means that “in spite of” Section 1, if NewPoint ended its employment relationship with him “without Cause,” NewPoint had to pay him severance under Section 7.

We agree with Brazeal’s definition of the word “notwithstanding.” As explained in our precedent, “ ‘notwithstanding’ means ‘without prevention or obstruction from’ or ‘in spite of.’ ” (Citation and punctuation omitted.) Record Town v. Sugarloaf Mills L.P. of Ga., 301 Ga. App. 367, 370 (3) (687 SE2d 640) (2009). But we disagree with Brazeal’s interpretation of the phrase “[Notwithstanding Section 1” as used in Section 6 of the Agreement. Inclusion of the phrase “[Notwithstanding Section 1” at the beginning of Section 6 simply means that the right of the parties to decline to renew Brazeal’s employment at the end of an employment term (Section 1) does not alter the right of NewPoint to “terminate” Brazeal “with or without Cause” during the course of that term (Section 6). In contrast, Brazeal’s interpretation of the phrase would in effect move “[Notwithstanding Section 1” from Section 6 to Section 7, and thus would require us “to rewrite or revise [the] contract under the guise of construing it,” which, of course, we are not at liberty to do. (Citation and punctuation omitted.) Rabun & Assoc. Constr. v. Berry, 276 Ga. App. 485, 487 (1) (623 SE2d 691) (2005).

Decided March 10, 2015.

Bodker Ramsey Andrews Winograd & Wildstein, Robert E. Rigrish, for appellant.

Weinberg Wheeler Hudgins Gunn & Dial, Nicholas P. Panayotopoulos, for appellee.

Finally, Brazeal claimed in his affidavit filed in support of his summary judgment motion that his interpretation of the Agreement as providing for severance pay in the event of “non-renewal” was supported by conversations he had with NewPoint’s agent while negotiating his employment contract and a nonbinding May 31, 2012 “Summary of Terms.” But “[w]here an action is brought upon an unambiguous contract, parol evidence may not be introduced to explain the intention of the parties in entering into the agreement.” Clarke v. Fanning, 127 Ga. App. 86, 88 (2) (192 SE2d 565) (1972).

For these combined reasons, we conclude that the Agreement reached between NewPoint and Brazeal plainly and unambiguously drew a distinction between the “non-renewal” of Brazeal’s term of employment (requiring no payment of severance) and “termination . . . without Cause” (requiring payment of severance). Because the uncontroverted evidence showed that NewPoint simply declined to renew Brazeal’s initial term of employment, the trial court properly granted summary judgment to NewPoint, and denied it to Brazeal, on Brazeal’s claim for breach of contract predicated on NewPoint’s failure to pay him any severance.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Pursuant to OCGA § 9-11-12 (b) (6), NewPoint also filed a motion to dismiss Brazeal’s complaint for failure to state a claim upon which relief could be granted. In the trial court’s order granting summary judgment to NewPoint and denying it to Brazeal, the court granted NewPoint’s motion to dismiss for the same reasons relating to the construction of the employment contract. On appeal, in addition to challenging the trial court’s summary judgment rulings, Brazeal enumerates as error the trial court’s grant of NewPoint’s motion to dismiss. This enumeration is moot, however, because the trial court granted NewPoint’s cross-motion for summary judgment on the same claims at issue in the motion to dismiss. See Ostuni Bros. v. Fulton County Dept. of Public Works, 184 Ga. App. 406, 409 (4) (361 SE2d 668) (1987).

       Brazeal’s complaint included a declaratory judgment claim seeking a ruling from the trial court that Brazeal was entitled to nine months of severance pay. The trial court granted summary judgment in favor of NewPoint on the declaratory judgment claim, but Brazeal does not contest or present any legal argument challenging that ruling on appeal. Brazeal thus has abandoned any claim of error relating to his declaratory judgment claim. See Court of Appeals Rule 25 (a) (3) and (c) (2); Home Depot U.S.A. v. Wabash Nat. Corp., 314 Ga. App. 360, 365 (1) (724 SE2d 53) (2012).
      Brazeal’s complaint also included a claim for breach of the implied covenant of good faith and fair dealing, alleging that NewPoint acted in bad faith in exercising its discretion to terminate Brazeal’s employment by “non-renewal” under Section 1 of the Agreement rather than by termination “without Cause” under Section 6 in an improper effort to avoid paying him any severance. Although NewPoint moved to dismiss Brazeal’s implied covenant claim and both parties moved for summary judgment on that claim, the trial court did not rule on the claim in its order. Because there has been no ruling on the implied covenant claim by the trial court, any issues relating to that claim are not ripe for appellate review. See Hardin v. Leitch, 232 Ga. App. 432 (2) (502 SE2d 288) (1998); Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 836 (3) (479 SE2d 435) (1996).


author: Andrews, Presiding Judge.

text:
    A14A2320.
    SUNSET HELP, LLC et al. v. COMMUNITY & SOUTHERN BANK.
    (769 SE2d 770)
   Andrews, Presiding Judge.

Community & Southern Bank filed an action against Sunset Help, LLC, John P. Malloy, Sr., and Patrick Malloy to recover money due on a promissory note. The Superior Court of Carroll County granted the Bank’s motion for summary judgment, and Sunset Help appeals. Because we conclude that the trial court failed to conduct an oral hearing as required by Uniform Superior Court Rule (USCR) 6.3, we reverse the trial court’s order granting the Bank’s motion for summary judgment and remand for further proceedings.

Following initial discovery, the Bank filed a motion for summary judgment on January 6, 2014. On February 5, 2014, the Bank and Sunset Help executed a stipulation that provided that “[Sunset Help] shall have through and including Monday, February 17, 2014, to respond to [the Bank’s] previously-filed motion for summary judgment.” Pursuant to the terms of the parties’ stipulation, Sunset Help filed its response to the Bank’s motion on February 17, 2014. Contemporaneously with its response, Sunset Help filed a cross-motion for summary judgment. On February 20, 2014, Sunset Help filed a separate pleading entitled “Defendants’ Request for Oral Hearing.” After additional briefing, and without conducting a hearing, the trial court entered an order on May 7, 2014 granting the Bank’s motion and denying Sunset Help’s cross-motion. This appeal followed.

1. Sunset Help contends that the trial court erred in awarding summary judgment to the Bank without first conducting the oral hearing requested by Sunset Help. We agree.

USCR 6.3 provides, in relevant part:

[0]ral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.

“Under this rule, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.” Carroll Anesthesia Assoc. v. Anesthecare, Inc., 230 Ga. App. 269 (495 SE2d 897) (1998). See also Green v. Raw Deal, Inc., 290 Ga. App. 464, 466 (1) (659 SE2d 856) (2008); Southeast Reducing Co. v. Wasserman, 213 Ga. App. 763 (445 SE2d 859) (1994). Furthermore, a trial court’s failure to hold oral argument following a timely request “cannot be considered harmless error, because doing so would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.” Carroll Anesthesia, 230 Ga. App. at 270 (punctuation omitted). See also Dixon v. McClain, 204 Ga. App. 531 (1) (420 SE2d 66) (1992).

Here, the Bank filed its motion for summary judgment on January 6, 2014. On February 5, 2014, the parties executed a stipulation permitting Sunset Help additional time in which to respond to the Bank’s motion. Sunset Help timely filed its response, as allowed by the stipulation, on February 17, 2014. Three days later, Sunset Help filed a “written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing.’ ” See USCR 6.3. Accordingly, the record confirms that Sunset Help timely requested an oral hearing on the Bank’s motion for summary judgment by filing its request “not later than five (5) days after the time for response.” Id. However, prior to scheduling the hearing to which Sunset Help was entitled, the trial court entered an order granting the Bank’s motion and denying Sunset Help’s cross-motion. It necessarily follows that the trial court erred in granting the Bank’s motion without hearing oral argument from Sunset Help. See Green, 290 Ga. App. at 466 (1); Carroll Anesthesia, 230 Ga. App. at 269; Wasserman, 213 Ga. App. at 763. As a result, we reverse the trial court’s order granting the Bank’s motion for summary judgment and denying Sunset Help’s cross-motion for summary judgment.

Decided March 10, 2015.

Smith Conerly, Charles S. Conerly, David A. Luzum, for appellants.

Busch White Norton, Bryan E. Busch, Shane P. Stogner, Laura H. Mirmelli, for appellee.

2. In view of our conclusion in Division 1, supra, we need not consider Sunset Help’s remaining enumerations of error. See Bennett v. McDonald, 238 Ga. App. 414, 416 (518 SE2d 912) (1999); Howard v. McFarland, 233 Ga. App. 286 (503 SE2d 900) (1998).

Judgment reversed and case remanded for further proceedings.

McFadden and Ray, JJ., concur.

       The Bank’s argument to the contrary, based upon the absence of an extension to request oral argument in the parties’ stipulation, is specious and ignores the plain language of USCR 6.3 (request for oral hearing timely if filed “not later than five (5) days after the time for response”). In this case, the record is clear that the parties agreed the “time for response”, was February 17,2014. Accordingly, Sunset Help’s written request for oral hearing, filed three days later, was timely.


author: McMlLLIAN, Judge.

text:
    A14A2349.
    EASON v. THE STATE.
    (769 SE2d 772)
   McMlLLIAN, Judge.

Kenneth Andre Eason was found guilty by a jury of armed robbery, and the trial court sentenced him as a recidivist to life in prison. See OCGA § 17-10-7 (a). He appeals following the denial ofhis motion for new trial, as amended, arguing his trial counsel was ineffective, the trial court should have given him more time to prepare for trial, his in-custody statement was improperly admitted, and the trial court improperly restricted his right to individually question prospective jurors. We affirm for the reasons set forth below.

Construed to support the jury’s verdict, the evidence at trial shows that on October 28, 2012, Charles Anderson went to an apartment complex located on Six Flags Drive in Cobb County to ask his relative Willie Plummer if he could borrow Plummer’s car. Plummer agreed, and Anderson left in the car with Dashon Hicks, ostensibly to look for day work. Instead, Anderson and Hicks drove to Fayetteville, where they picked up Shantel Washington, whom Hicks identified as his cousin, and her boyfriend, defendant Kenneth Eason.

According to Hicks, Anderson then drove to his residence on Marietta Street in Atlanta, where he went inside and changed clothes while the others waited in the car. When Anderson emerged, he had on a hoodie sweater and was carrying a black or dark blue bag. Anderson got back in the car, and Washington, who had taken over the driving, drove back to Six Flags Drive and parked about a quarter mile down from a Waffle House located there. Eason, who was wearing a black shirt, then took a black ski mask out of the bag and put it on, and Anderson zipped up his hoodie sweater, which had some sort of “eye holes” in it, so that it covered his face.

Hicks testified that Anderson and Eason exited the car and ran toward the Waffle House, while he and Washington waited in the car. According to witnesses inside the Waffle House, two men dressed in black with their faces covered up entered the restaurant at about lunchtime on October 28, 2012, and the taller and heavier of the two men stayed near the entrance of the restaurant and kept people from leaving while the shorter and slighter man ran inside the restaurant with a gun. Anderson walked toward the register, which was open because a waitress was checking out a customer, and brandishing a gun, demanded the money from the register. Another waitress, who was also nearby, remarked to Anderson to get the money himself, and Anderson jumped or climbed across a booth where customers were sitting, reached inside the register, and took the money out with one hand while pointing the gun at the waitress with the other hand.

Eason and Anderson ran out of the Waffle House and back toward the car where Washington and Hicks were waiting. A witness, who was driving along Six Flags Drive, saw two men who were wearing masks run down the street and jump into a slowly moving car. She arrived at the Waffle House moments later, and when she realized there had been a robbery, she made a U-turn and started following the car. She instructed her daughter, who was in the car, to call police and was able to get close enough to the other vehicle to give police the tag number. She then returned to the Waffle House where she talked with police and also gave them the tag number and a description of the vehicle.

Hicks testified that after they left the vicinity of the Waffle House, Washington drove back to Anderson’s apartment, and after sitting around for awhile, Anderson decided to move Plummer’s car and report it stolen. However, at some point Hicks and Plummer went to pick up the car and drive it back to Plummer’s apartment complex. By that time, police had identified Plummer as the owner of the car, and they arrived at the apartment complex about the same time Hicks and Plummer returned with the car. Police surrounded the car, and Hicks subsequently identified the other participants in the robbery.

Eason was arrested and, after receiving his Miranda warnings, gave a statement to the lead detective in the case, Detective David Thorp, of the Cobb County Police Department’s Crimes Against Persons Unit. The trial court found Eason’s statement admissible following a Jackson-Denno hearing, and Detective Thorp testified about Eason’s statement at trial. According to Detective Thorp, Eason told him that Washington and he were on their way to do laundry, but instead they got in the car with Anderson, who mentioned “hitting a lick.” They then went to Anderson’s apartment, where he picked up a bag containing a gun and a mask. Eason told Detective Thorp he put on a mask, which matched the description Detective Thorp was given by witnesses, and Eason admitted to seeing a gun, although he said he could not describe the gun because he was not familiar with firearms. Detective Thorp also said that Eason told him that after the robbery they went back to Anderson’s apartment, and Anderson came up with the idea to attempt to cover their tracks by reporting the car they used in the robbery as stolen. He also told Detective Thorp that Anderson gave him $200 as his share of the proceeds from the robbery.

Additional evidence will be set forth as necessary to address Eason’s specific contentions on appeal.

1. Eason first argues that the trial court erred by not continuing the trial to allow him an opportunity to “adequately” communicate with his trial counsel and to properly prepare his defense at trial. Eason acknowledges he did not specifically request a continuance, but argues the trial court should have understood he was making such a request when he informed the court that he needed more time to confer with his trial attorney about his defense, and when he asked the court to appoint him new counsel because his current trial counsel did not know how he was going to defend him at trial. However, as we have repeatedly held, by failing to move for a continuance, Eason has waived his right to assert this error on appeal. Simmons v. State, 291 Ga. 664, 667 (4) (732 SE2d 65) (2012); Watts v. State, 265 Ga. 888, 888 (2) (463 SE2d 696) (1995); Sheppard v. State, 297 Ga. App. 806, 812 (2) (678 SE2d 509) (2009).

Moreover, even assuming that the trial court treated Eason’s statements as a request for a continuance and implicitly denied his request, Eason has failed to show that he is entitled to reversal of this decision. Whether to allow a party additional time to prepare for trial is addressed to the sound discretion of the trial court, and we will not reverse the trial court’s refusal to order a continuance absent a clear showing of abuse of that discretion. White v. State, 304 Ga. App. 158, 159 (2) (695 SE2d 425) (2010); Miller v. State, 303 Ga. App. 422, 423 (693 SE2d 637) (2010); McIntyre v. State, 302 Ga. App. 778, 780-781 (2) (691 SE2d 663) (2010); Anthony v. State, 276 Ga. App. 107, 108-109 (2) (622 SE2d 450) (2005). We find no such abuse here. Eason’s trial attorney, Ronnie Knighton, informed the trial court that despite Eason’s request for more time to prepare, he was ready to go to trial. The facts surrounding the charges against Eason were neither complex nor convoluted, and the evidence was entirely testimonial in nature, the substance of which was contained in the witnesses’ statements Eason’s trial counsel obtained during reciprocal discovery. Additionally, on appeal, Eason has not pointed to any specific defense or evidence that might have been raised if he and his counsel had been given more time to prepare his defense. Miller, 303 Ga. App. at 424 (“To show harm [the accused] was required to specifically identify what other evidence or witnesses he would have put forth in his defense if his counsel had been given more time to prepare; speculation and conjecture are not enough.”) (citation and punctuation omitted). And although Eason testified at the motion for new trial hearing that he needed the extra time to confer with his attorney about certain evidentiary matters, he admitted that he did not apprise his attorney of these alleged points of defense when he and his counsel were given the opportunity to meet before trial. Under these circumstances, Eason has failed to show error entitling him to a new trial. Id.

2. Eason also argues that the trial court erred by allowing Detective Thorp to testify concerning his in-custody statement because it should have been clear to the detective that Eason was holding out some hope of benefit when Eason stated during the interview “I need your help.” Detective Thorp testified at the Jackson-Denno hearing that he responded to this statement by explaining that he was not in a position to offer Eason any sort of deal, and that all he wanted was for Eason to tell him the truth. He also told Eason that whether he cooperated or not, he would pass along whatever information he obtained from Eason during the interview to the district attorney’s office or the trial court.

“To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-8-824. Generally, the promise of a benefit that renders a confession involuntary under this Code section means a reduced charge or sentence. Rivers v. State, 296 Ga. 396, 399 (3) (768 SE2d 486) (2015); Johnson v. State, 295 Ga. 421, 423 (2) (761 SE2d 13) (2014); Vergara v. State, 283 Ga. 175, 181 (1) (657 SE2d 863) (2008); Preston v. State, 282 Ga. 210, 211 (2) (647 SE2d 260) (2007); Edwards v. State, 312 Ga. App. 141, 145 (3) (717 SE2d 722) (2011). Clearly, an investigator does not make an offer of hope of benefit simply by telling a defendant that he will make the prosecutor aware of his or her cooperation. Edwards, 312 Ga. App. at 146 (3). And the fact that Eason may have hoped the police would offer him something more if he confessed did not render the statement inadmissible. Williams v. State, 250 Ga. 553, 559 (1) (300 SE2d 301) (1983) (where the hope or fear is the product of defendant’s own mind, rather than the result of inducement by others, the statement is admissible).

3. Eason argues that the trial court erred by not allowing his trial counsel to conduct individual voir dire of potential jurors on two panels. But this contention does not accurately reflect what took place in the trial court. Although voir dire was not transcribed, the trial court’s instructions to counsel concerning how voir dire would be conducted were recorded and have been made a part of the record on appeal. The trial court explained that general voir dire questions would be posed to all potential jurors, and then counsel would have an opportunity to individually question each potential juror. The trial court requested that counsel pose as many general questions as possible to avoid individual questioning on matters that could be asked of all prospective jurors at the same time, and after the first panel was questioned, the trial court reiterated his instructions to Eason’s counsel and gave him examples of the type of questions that could be posed as general questions. Thus, the trial court did not, as Eason contends on appeal, “disallow” his trial counsel the opportunity to individually question some of the potential jurors. Rather, the trial court simply requested that counsel ask as many questions as possible as general questions before moving on to individually questioning prospective jurors.

Moreover, our appellate courts previously have found this procedure permissible. Walker v. State, 271 Ga. 328, 329 (2) (519 SE2d 670) (1999) (a trial court is permitted to require that general questions be addressed to the entire panel rather than allowing each juror to be questioned seriatim); State v. Hutter, 251 Ga. 615, 616 (307 SE2d 910) (1983) (no error where counsel simply denied opportunity to ask question seriatim to each juror, but instead was required to address the question to the panel as a whole in a way that would ensure an individual response from potential jurors); see also Uniform Superior Court Rule 10.1. Eason has failed to show that the trial court abused its discretion by refusing to allow his counsel to pose each voir dire question individually to potential jurors when the trial court also permitted the parties to individually examine each juror.

4. Lastly, we consider Eason’s claims that his trial counsel was ineffective. We start with the well-known standard that applies to this claim.

To prevail on a claim of ineffective assistance, [an accused] must prove both that the performance of his lawyer was deficient and that [this deficiency] prejudiced [his or her defense]. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [an accused] must prove that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U.S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance of his lawyer, [an accused] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 (III) (B).

Jones v. State, 292 Ga. 593, 599 (7) (740 SE2d 147) (2013). Although

[t]his does not require a showing that counsel’s actions more likely than not altered the outcome, . . . the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012), citing Harrington v. Richter, 562 U.S. 86, 111-112 (IV) (B) (131 SCt 770, 178 LE2d 624) (2011). The burden to prove an ineffectiveness claim, although not impossible to carry, is a heavy one. Jones, 292 Ga. at 599 (7).

With these tenets in mind, we turn to Eason’s specific claims of ineffectiveness.

(a) Eason argues that his trial counsel was ineffective because he failed to adequately prepare for trial. Eason’s trial attorney testified at the motion for new trial hearing that he had been admitted to practice law in 1971, and that since that time he had tried approximately 500 cases. Counsel testified his practice had always consisted of at least half criminal defense work, but in the last 12 to 15 years, criminal defense work had comprised approximately 90 percent of his practice.

Trial counsel testified that he met with Eason between five and ten times before trial, that he received and reviewed the statements of the eyewitnesses and the co-defendants through reciprocal discovery with the State, and that he went over those statements with Eason before trial. He explained that he did not believe it was necessary to interview the witnesses from Waffle House, especially since none of them could identity Eason, although as was his custom he conducted his own investigation and went to the Waffle House so he could get a feel for the scene. Trial counsel testified that Eason told him from the beginning that he was involved in the robbery, and that in his opinion, which he shared with Eason, the State’s evidence was “pretty well” overwhelming and did not leave them with any real defense. He said he explained to Eason his firm belief that Eason’s best option was to secure a plea deal from the State and that he practically begged him to take the State’s plea deal, but Eason wanted a better deal so he turned down the State’s offer.

Although Eason argues on appeal that his counsel should have interviewed the witnesses, hired an investigator, checked to see if the witnesses had a criminal history and subpoenaed any videotapes from the Waffle House, the only effect he points to from these failures is that there is “some probability’ that the outcome of the trial would have been different if these steps had been taken. But such a conclusory statement is not sufficient to support a claim that without counsel’s alleged shortcomings, there is a reasonable probability that the outcome of trial would have been different. This enumeration thus presents no basis for reversal. Kilby v. State, 289 Ga. App. 457, 460 (3) (657 SE2d 567) (2008).

(b) Eason also argues that his trial counsel should have questioned Detective Thorp during the Jackson-Denno hearing concerning what he told Eason about his possible sentence. Although Eason does not contend that Detective Thorp misinformed him about his sentence, he argues that the trial court “could have made” a different ruling on the admissibility of the statement if the trial court had known that Detective Thorp failed to tell Eason that he was facing the possibility of a life sentence.

Trial counsel testified at the motion for new trial hearing that he listened to the recording of the interview prior to the Jackson-Denno hearing and that he did not recall hearing Eason ask Detective Thorp how much time he was potentially facing if he was charged with armed robbery. Further, trial counsel testified that he listened to the recording with a view toward finding something that could be used to show that Eason had been made promises or been given some hope of benefit if he confessed, but that he did not recall hearing anything on the recording which would have provided a basis for such an argument. Accordingly, since counsel was unable to recall anything specific about the exchange in question and could not recall that he heard anything on the tape that he thought would be helpful, we must presume that trial counsel made a strategic decision not to question Detective Thorp concerning his exchange with Eason about possible sentences. See Brown v. State, 288 Ga. 902, 908-909 (5) (708 SE2d 294) (2011) (“ ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics”). And because Eason does nothing more than speculate on appeal that the trial court “could have made” a different determination if trial counsel had brought this exchange to light, he has failed to make the necessary showing that counsel’s decision was so “patently unreasonable that no competent attorney would have chosen it.” (Citation and punctuation omitted.) Id. at 909 (5). See White, 304 Ga. App. at 160-161 (4).

(c) Eason next argues that his trial counsel rendered ineffective assistance by failing to select a proper jury. The record shows that trial counsel testified at the motion for new trial hearing that he had written down the wrong numbers on the “strike sheet” for panel two, and as a result some of the jurors who ended up serving on the panel were not the ones he selected. Although Eason argues this alone shows that his counsel performed deficiently, he makes absolutely no assertion or showing concerning how he was prejudiced by counsel’s mistake. Eason has not attempted to identify which jurors erroneously served on the jury, has not raised even the slightest possibility that the jurors were not qualified, and has not made any showing that any of the jurors who served harbored any prejudice toward him or were disinclined to acquit him based on reasons other than the evidence presented at trial. Accordingly, even assuming deficient performance, reversal is not required because Eason has not affirmatively shown he was prejudiced by counsel’s mistake. E.g., O’Brien v. State, 242 Ga. App. 344, 346-347 (2) (529 SE2d 657) (2000) (ineffectiveness claim fails where defendant failed to show “flip-flopping” juror’s names resulted in prejudice); Shields v. State, 307 Ga. App. 830, 834 (1) (a) (706 SE2d 187) (2011) (showing of actual prejudice necessary to find counsel was ineffective based on misunderstanding concerning number of peremptory challenges).

(d) Eason contends that his trial counsel was ineffective because he failed to object to questions and testimony that he contends amounted to an improper comment on his right to remain silent. The comments and questions Eason points to as objectionable occurred during the State’s examination of Detective Thorp concerning his interview with Eason. Specifically, Eason contends that his trial counsel should have objected when the prosecuting attorney asked Detective Thorp whether Eason denied if there was a gun present, when he asked Detective Thorp if Eason denied being in the Waffle House, and when he asked Detective Thorp if Eason denied that was the mask he had been wearing.

This claim of ineffectiveness is also without merit. Eason was under arrest and had been given Miranda warnings when he agreed to speak to the investigator, and there is no contention that he entered the interview with the understanding that he would not answer certain questions or that certain topics were off limits. Further, although Detective Thorp testified at the Jackson-Denno hearing that Eason may have failed to answer several questions, he also said that he never refused to answer any questions, never said he wanted to stop the interview, and never indicated he did not want to answer any additional questions without an attorney being present. Accordingly, since Eason did not invoke his right to remain silent during the interview, the testimony regarding failure to respond to particular questions or to interject denials during the interview was admissible. Curry v. State, 291 Ga. 446, 451 (3) (729 SE2d 370) (2012) (defendant did not invoke right to remain silent during interview and thus testimony regarding his failure to respond to particular questions was admissible); Shaburov v. State, 324 Ga. App. 743, 747 (1) (751 SE2d 540) (2013) (“since [defendant] spoke with police without ever invoking his right to remain silent, the prosecutor’s line of questioning . . . did not constitute impermissible commentary on appellant’s right to remain silent”). “Because the trial court would not have been required to sustain objections to the testimony and arguments about which Appellant complains, the failure of his lawyers to make such objections does not show that Appellant was denied the effective assistance of counsel.” Yancey v. State, 292 Ga. 812, 819 (4) (740 SE2d 628) (2013).

(e) Lastly, Eason contends that his trial counsel was ineffective because he failed to properly advise him on recidivist sentencing, and argues that had his counsel given him proper information, he could have a “true opportunity’ to knowingly and voluntarily accept or reject the State’s plea offer. This contention, however, is belied by the record. Trial counsel testified that after he received notice that the State sought to sentence Eason as a recidivist, he specifically advised Eason that he could be facing a life sentence and that when Eason would not accept the State’s plea deal despite the seemingly overwhelming evidence against him, he had Eason brought to court so that the trial judge could explain to Eason that if he was found guilty he would have no other choice but to sentence him to life. After the trial court explained the sentencing, Eason had until 9:00 a.m. the following day to accept or reject the offer, and counsel testified he met with Eason at 8:30 a.m. to go over the offer again. Although Eason testified at the motion for new trial hearing that he could not recall if trial counsel told him he was facing a mandatory, as opposed to a possible, life sentence, the trial court explained to him that he was facing a mandatory life sentence before he finally rejected the plea offer. Accordingly, Eason has wholly failed to establish that his trial counsel rendered deficient performance in regard to his sentencing or the State’s plea offer. And because all of Eason’s ineffectiveness claims fail, he is not entitled to a new trial on this basis.

Decided March 10, 2015.

James M. Miller, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Hicks was 22 years old at the time of trial. Plummer is his grandfather and Anderson is his uncle.

       Anderson was described as substantially shorter and thinner than Eason.

        Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       Although the statement was recorded, it was not introduced into evidence at trial because the sound quality was poor and Eason’s numerous references to having been in prison could not be redacted.

       Neither the face coverings worn by the men nor the gun used in the robbery was ever located.

       This case was tried in September 2013, after the effective date of the new Evidence Code. This language was formerly codified at OCGA § 24-3-50.

       Eason’s trial attorney agreed with the trial court that it was not necessary for the entire voir dire to be taken down, but requested that the court reporter remain on standby to take down any objections that might arise during voir dire.

       We again note that the recording was of poor quality and that it was not played at trial for this reason, among others.

       The transcript from the motion for new trial hearing discloses that trial counsel was only asked about his failure to object to the testimony about Eason’s failure to deny there was a gun or that he was in the Waffle House. However, we need not differentiate these statements for purposes of our analysis since none of them was objectionable for the reasons set out above.