author: BARNES, Presiding Judge.

text:
    A13A1777.
    WAYE v. THE STATE.
    (756 SE2d 287)
   BARNES, Presiding Judge.

Alfonsa Waye appeals his conviction for aggravated assault, contending that the trial court erred in admitting for impeachment purposes evidence of Waye’s 1987 aggravated assault conviction and his 1991 cocaine possession conviction. He also contends the evidence was insufficient to authorize the jury to find him guilty beyond a reasonable doubt. While we find the evidence sufficient, we must “remand this case to the trial court to enter express findings on the record as to whether, in the interest of justice, the probative value” of Waye’s 1987 conviction substantially outweighs its prejudicial effect. Clay v. State, 290 Ga. 822, 838 (3) (725 SE2d 260) (2012).

1. We note first that shortly after Waye was convicted of this offense in August 2008, his trial counsel filed a notice of appeal in the Superior Court of Glynn County, rather than a motion for new trial. In January 2009, Waye filed the first of many requests to the superior court clerk seeking a copy of his trial transcript, asserting that his trial counsel would not contact him about his appeal. In February 2009, the trial court issued the first of four identical form orders stating that Waye was not entitled to a trial transcript at public expense for post-conviction relief without a showing of necessity. The orders did not indicate that Waye’s counsel had filed a notice of appeal.

From March 2009 to May 2011, the record shows that Waye made eight more attempts to obtain assistance in prosecuting his appeal, through various motions and letters to the clerk. He apparently even filed a petition for habeas corpus, which is not included in the record, but which is referred to in Waye’s December 2009 motion to dismiss his trial counsel and appoint appellate counsel, in which he noted that the first time he knew he had an appeal pending was when the habeas judge told him. The final order issued by the trial court, which was another form order denying Waye’s request for a copy of his trial transcript, was entered on July 1,2011. In May 2013,21 months after entry of the final order on his motion for a new trial and 57 months after his sentencing, Waye’s appeal was docketed in this court.

This sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case. That does not affect the outcome of this appeal, however, because Appellant has enumerated no error associated with the delay.

(Citation and punctuation omitted.) Morgan v. State, 290 Ga. 788, 789, n. 2 (725 SE2d 255) (2012).

2. Waye argued that the evidence was insufficient to overcome his affirmative defense of justification and authorize the jury to find him guilty beyond a reasonable doubt of aggravated assault. We disagree.

Construed most strongly in support of the verdict, the evidence at trial showed that Waye approached the victim as he was walking home and asked him if he wanted “to get anything,” meaning crack cocaine. The victim said yes but he only had a dollar. Waye replied, “Give me your dollar and wait right here.” Waye went to a nearby house and he gave the residents the victim’s dollar and another dollar of his own and was given some gin and beer to drink. He left the house to apprise the victim that, while there was no crack available at that moment, someone was bringing drugs to the house and he anticipated that he would be given some crack because he had already given the residents the money. The victim was irate and wanted his dollar back, but Waye had spent it and offered the victim a bag of socks instead, but the victim insisted that he wanted his dollar back.

Waye stood for a time with his hands in his pockets as the victim was “right here in [his] face,” then suddenly grabbed one side of the victim’s neck and swiped a knife across the other side, creating a deep, wide gash. The victim looked up to see Waye coming at him again and ran away, bleeding profusely. Someone in the neighborhood heard the victim screaming and assisted him until emergency medical assistance arrived and took the victim to the hospital. The record includes a color photo of the long, gaping wound on the victim’s neck.

Waye took the stand and testified that he knocked a knife from the victim’s hand while the victim was coming at him, but the victim kept coming back. Waye picked up the victim’s knife from the ground and swung it at the victim, thinking he had just bumped the victim in the chest. After he realized that the victim had a cut on his neck, he dropped the knife and went home.

While no one other than Waye and the victim saw the fight,

[w]e do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. [Former] OCGA § 24-4-8 provides that “the testimony of a single witness is generally sufficient to establish a fact.”

(Citations and punctuation omitted.) Reeves v. State, 288 Ga. 545, 546 (1) (705 SE2d 159) (2011). Here, Waye testified that he acted in self-defense, his trial counsel argued to the jury that Waye was acting in self-defense, and the trial court charged the jury on the elements of self-defense.

[T]he question of whether [Waye] acted in self-defense was solely for the jury, which obviously resolved the issue against [Waye]. [Waye] in effect asks us to reweigh the evidence to place greater credence in his justification defense than did the jury, but this court does not weigh the evidence or assess the credibility of witnesses. Instead, utilizing the standard set forth in Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979),] we determine whether the evidence, construed in a light most favorable to the verdict, was legally sufficient. So construed, we find that the evidence here supported [Waye’s] conviction [ ].

(Punctuation and footnotes omitted.) Carter v. State, 303 Ga. App. 142, 144 (1) (692 SE2d 753) (2010).

3. Waye enumerates as error the admission of prior conviction evidence for impeachment purposes under former OCGA § 24-9-84.1. Before the State began its cross-examination of Waye, the trial court conducted a hearing outside the jury’s presence and determined that the State would be allowed to introduce evidence of two out of three prior felony convictions for impeachment purposes.

In ruling on the admissibility of the evidence, the trial court said:

This is a difficult issue. We don’t have a lot of guidance on it. The Legislature has managed to muddle things up considerably by this amendment to the statute in . . . 2005 .... I really think the’77 conviction is just too far remote, too stale. I am going to allow impeachment by the ’87 aggravated assault conviction and the ’91 possession of cocaine as meeting the standard of the statute.

Waye admitted during cross-examination that he had been previously convicted of possessing cocaine and of aggravated assault, and the State did not question him further regarding the circumstances of those convictions.

On appeal, Waye argues that the trial court erred in admitting evidence of the two prior convictions “without making findings on record explaining its ruling that the probative value of [the] prior convictions substantially outweighed [their] prejudicial effect.”

Former OCGA § 24-9-84.1 (a) (2) provided that evidence of a defendant’s felony conviction that was less than ten years old was admissible if the probative value of the evidence substantially outweighed its prejudicial effect to the defendant. Further, evidence of a defendant’s conviction older than ten years was only admissible if the court determined “in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweigh[ed] its prejudicial effect.” (Emphasis supplied.) Former OCGA § 24-9-84.1 (b).

The State argues on appeal that, although the trial court did not specifically state that it had completed the required balancing test, it was clear from the record that the court meaningfully analyzed the necessary relevant factors. Further, it notes, the court was not required to list the specific factors it considered as to the 1991 conviction because it was less than ten years old.

As late as 2012, our Supreme Court admitted that trial courts had been given “little guidance regarding what constitutes an abuse of discretion in admitting such convictions under [former] OCGA § 24-9-84.1.” Clay, 290 Ga. at 835 (3) (B). Recognizing that a trial court has the discretion to consider additional factors it deems appropriate in a particular case, the court in Clay held that five factors outline the basic concerns relevant to the required balancing:

(1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

Id. at 835-836 (3) (B).

In considering under former OCGA § 24-9-84.1 (a) (2) the admissibility of prior convictions less than ten years old, the court held that “a trial court must make an on-the-record finding that the probative value of admitting a prior conviction substantially outweighs its prejudicial effect,” but was not required to list the specific factors it considered in making its decision. Clay, 290 Ga. at 836-837 (3) (B).

The trial court is required to make a different determination, however, regarding a prior felony conviction that is older than ten years. Evidence of such a conviction is not admissible “unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. [Former] OCGA § 24-9-84.1 (b).” Clay, 290 Ga. at 837 (3) (B).

[A] trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes under [former] OCGA § 24-9-84.1 (b).

Id. at 838 (3) (B).

Accordingly, we remand this case to the trial court to make an on-the-record finding of whether the probative value of admitting the 1991 conviction substantially outweighed its prejudicial effect, and to enter express findings on the record as to whether, in the interest of justice, the probative value of Waye’s 1987 conviction substantially outweighed its prejudicial effect, “based on the factors set forth above and any other facts and circumstances the trial court may deem relevant.” Clay, 290 Ga. at 838 (3) (B).

Judgment vacated and case remanded.

Miller and Ray, JJ., concur.

Decided March 13, 2014.

Margaret E. Sumrall, Dante L. Hudson, for appellant.

Jacquelyn L. Johnson, District Attorney, Rocky L. Bridges, Assistant District Attorney, for appellee.

       Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99,214, § 101. As to impeachment by prior convictions under the new Evidence Code, see OCGA § 24-6-609 (a) (1).

       As to a witness who was not a defendant in a criminal trial, the court had only to determine whether the probative value of a prior conviction outweighed its prejudicial effect, not whether it substantially outweighed the prejudicial effect. Former OCGA § 24-9-84.1 (a) (1).

       In this case, Waye’s 1991 conviction was less than ten years old because the statute measured the time period from “the date of the conviction or of the release of the defendant from the confinement imposed for that conviction, whichever is the later date” (emphasis supplied), and Waye was released from confinement for that conviction in 1999, less than ten years before his 2008 trial.

       While both parties discuss the applicability of Crosby v. State, 319 Ga.App. 459 (735 SE2d 588) (2012) to this case, we note that Crosby is physical precedent only and therefore is not binding precedent. See Court of Appeals Rule 33 (a).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A13A1927.
    COUCH v. THE STATE.
    (756 SE2d 291)
   MCFADDEN, Judge.

Casper Couch appeals from his convictions for rape, child molestation, false imprisonment and burglary. He challenges the sufficiency of the evidence to support these convictions and argues that the trial court should have suppressed DNA evidence. Because the evidence was sufficient and the DNA evidence was obtained pursuant to a valid search warrant, we affirm.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal convictions, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that on the night of September 19, 2003, a man entered a residence where I. H., then 11 years old, was spending the night with her aunt. I. H., who had been sleeping on a sofa, awoke to find herself on a mattress on the floor with her panties down at her feet. She went back to sleep. Later, she awoke to find that her panties had been removed and a man was on top of her, holding her by her hands so she could not move. She tried to get up but the man would not let her, and he told her that if she got up he would “knock [her] back down.” She again tried to get up and the man broke her hand. I. H. tried to scream but could not because the man was applying weight to her chest. The man then pushed what I. H. believed to be his penis into her vagina, causing her pain; she testified that it could not have been his hands or fingers because he was holding her down with his hands at the time. The man then escaped through the back door of the residence. I. H. immediately told her aunt what had happened.

I. H. initially identified someone other than Couch as her assailant. But Couch’s DNA matched that of seminal fluid found on I. H.’s clothing. Couch also was seen near the house shortly after the rape, and his shirt was found in the residence.

From this evidence a reasonable trier of fact could find beyond a reasonable doubt that Couch committed the offenses of rape, OCGA § 16-6-1 (a) (1) (person commits offense of rape when he has carnal knowledge of a female forcibly and against her will); child molestation, OCGA § 16-6-4 (a) (1) (person commits offense of child molestation when he does any immoral or indecent act to or in presence of child under age of 16 with intent to arouse or satisfy his sexual desires or those of child); false imprisonment, OCGA § 16-5-41 (a) (person commits offense of false imprisonment when, in violation of another’s personal liberty, he arrests, confines, or detains such person without legal authority); and burglary, OCGA § 16-7-1 (b) (person commits offense of burglary when, without authority and with intent to commit a felony, he enters the dwelling house of another).

2. Motion to suppress DNA evidence.

Couch argues that the trial court erred in denying his motion to suppress the DNA evidence, which the state obtained pursuant to a search warrant. At the hearing on Couch’s motion, a Georgia Bureau of Investigation agent testified that she assumed responsibility for the investigation in this case after the death of the agent who had initiated the investigation. She reviewed the files, which indicated that Couch’s DNA (obtained from a blood sample that the first agent had taken from Couch with Couch’s consent) matched the DNAfound on I. H.’s clothing. Based on this information, the second agent sought a warrant to obtain a saliva sample from Couch for DNA testing. In a supporting affidavit, the second agent described the information she had obtained from the first agent’s records.

Couch argues that the magistrate court lacked probable cause to issue a search warrant. See OCGA § 17-5-30 (a) (2) (defendant may move to suppress items obtained with search warrant on the ground that the warrant was illegal because there was not probable cause for its issuance). In determining probable cause, the magistrate’s task is

to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (citations omitted). “[A]n affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay.” Deal v. State, 199 Ga. App. 184, 185 (1) (404 SE2d 343) (1991) (citation and punctuation omitted). The appellate court’s duty

Decided March 13, 2014.

William J. Mason, for appellant.

Julia Fessenden Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

is to determine if there was a substantial basis for concluding that probable cause existed to issue the search warrant. Doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise maybe the case.

Glenn v. State, 288 Ga. 462, 466 (2) (d) (704 SE2d 794) (2010) (citations and punctuation omitted).

The second agent’s affidavit was based on information she retrieved from the file assembled by the original investigating agent. That information included the match of Couch’s DNA to that in seminal fluid found on I. H.’s clothing. It provided a substantial basis for concluding that probable cause existed to issue the search warrant to obtain further DNAfrom Couch. The trial court did not err in denying the motion to suppress.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A13A2014.
    LEONARD v. THE STATE.
    (756 SE2d 293)
   MCFADDEN, Judge.

Clarence Leonard appeals his theft by shoplifting conviction. He argues that the evidence does not support the conviction because he was charged with taking a Dell Streak 7 cell phone, but the evidence showed that the item taken was a Dell Streak 7 tablet. We hold that the evidence was sufficient to support the conviction for theft by shoplifting of a Dell Streak 7. And the variance between the indictment and the evidence is not fatal to the conviction because the allegations in the indictment definitely informed Leonard as to the charges against him so as to enable him to present his defense and were adequate to protect him against another prosecution for the same offense. We therefore affirm.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that Leonard was indicted for theft by shoplifting for taking without paying a Dell Streak 7 cell phone from a Douglas County T-Mobile store on February 7, 2011. The manager of the T-Mobile store in Lithia Springs testified that on February 7, 2011, two men entered the store but began to leave before they had been helped. The manager noticed that a Dell Streak 7 that had been on display was missing. As they were leaving, the manager asked the men if they wanted to buy the device, but they said no and left. The manager ran out of the store and saw the men get into a gold Pontiac. She called the police. She described the functions of a Dell Streak 7 as, “Internet capability, download apps, messaging if you want. At the time there was an application where you can actually make phone calls” and the device had a phone number associated with it. Although Dell makes a Streak model cell phone, T-Mobile does not carry it.

The store’s loss prevention manager was able to pull pictures of the men from the video surveillance system. The system also recorded two videos of the incident, which were played for the jury.

Leonard’s co-defendant testified, confirming the manager’s testimony that he and Leonard took the device. He also identified himself and Leonard in the photographs and video recordings from the surveillance system.

A person commits the offense of theft by shoplifting when

such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.

OCGA § 16-8-14 (a) (1). The evidence is sufficient to support the conviction of shoplifting a Dell Streak 7.

Leonard argues that the evidence does not support his conviction because it shows that a Dell Streak 7 tablet was taken, while he was charged with taking a Dell Streak 7 cell phone. In other words, he argues that there was a fatal variance between the indictment and the evidence. However, we no longer apply

an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006) (citations omitted). In this case, the indictment adequately informed Leonard as to the charge against him. It placed him on notice that the state claimed that he had shoplifted a Dell Streak 7 device from a Douglas County T-Mobile store on February 7, 2011. “To the extent that the indictment varied from the [s]tate’s case, it was immaterial and did not affect [Leonard’s] ability to defend himself.” White v. State, 323 Ga. App. 660, 663 (2) (744 SE2d 857) (2013). And as there is no evidence that the particular T-Mobile store carried any other Dell Streak 7 device on February 7, 2011, Leonard is protected against another prosecution for the same offense. See Brooks v. State, 151 Ga. App. 384, 387 (2) (259 SE2d 743) (1979).

The indictment in this case sufficiently informed [Leonard of the shoplifting] charge [ ] against him and he has not shown that he was unable to present a viable defense to such charge [ ] or that he was surprised or misled at trial by the [testimony that a Dell Streak 7 is a tablet]. Moreover, there is no danger that [Leonard will be] prosecuted a second time for the same offense.

Decided March 13, 2014.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Roscoe v. State, 288 Ga. 775, 776-777 (3) (707 SE2d 90) (2011). Consequently, Leonard has not shown a fatal variance. See Brown v. State, 302 Ga. App. 641, 644(2) (692 SE2d 9) (2010) (no fatal variance between the indictment charging defendant with unlawfully taking from her employer United States currency in excess of $500 and proof that she used her employer’s purchase orders to pay personal expenses in excess of $500); Wegman-Fakunle v. State, 277 Ga. App. 198, 200 (2) (626 SE2d 170) (2006) (variance between accusation that defendant shoplifted a bottle of Nyquil and evidence that she actually took a box of Nyquil was not fatal).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A13A2090.
    WINDHOM v. THE STATE.
    (756 SE2d 296)
   MCFADDEN, Judge.

In Windhom v. State, 315 Ga. App. 855 (729 SE2d 25) (2012), we reversed Errol Windhom’s armed robbery conviction because of the improper admission of evidence. Windhom was retried and convicted of armed robbery a second time. He appeals this second conviction and sentence, arguing that the court erred by allowing a mentally incompetent co-defendant to testify. But he has not shown that the trial court abused its discretion in allowing the co-defendant to testify, given that the co-defendant was subsequently determined to be competent to enter a guilty plea. Windhom argues that the trial court erred in allowing a video recording to go out with the jury in violation of the continuing witness rule, but the video recording was original evidence not subject to the continuing witness rule. Windhom argues that the trial court erred in failing to give two requests to charge. We find that the trial court’s instructions covered the principles Windhom requested to be charged. We reject Windhom’s argument that the evidence does not support the conviction and that his sentence — within the statutory range — violates the United States and Georgia Constitutions. Accordingly, we affirm Windhom’s conviction and sentence.

1. The evidence was sufficient to support the conviction.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence, including the testimony of co-defendant Chris Graddick, shows that an armed robbery occurred at the A&Z Flower and Game Shop on May 19, 2009. Errol Windhom played the game machines at A&Z almost every day. On the day of the robbery, after he was finished playing, he approached the counter and began a conversation with Melissa Ann Amin, an employee of A&Z. While they were talking, Windhom’s phone rang, and he told Amin it was his little girl. Five to ten minutes later, Michael Shane Bedford and Chris Graddick entered the store; they had been in the store the day before and Amin recognized them. Bedford pulled a gun on Amin and threatened to kill her. He told Amin to empty her pockets and the cash register. He took the store’s cordless phones, Amin’s cell phone, and $700 to $900. The two men told Windhom to lie on the ground and locked Amin in the bathroom. Amin never saw either of the two men pull a gun on Windhom or take anything from him. When she left the bathroom ten minutes later, she saw that Windhom was gone and his red Volvo was no longer parked in his parking spot.

Graddick testified that Windhom drove him and Bedford to the store in his red Volvo. Windhom gave Bedford his gun. Windhom dropped off Graddick and Bedford at the other side of the shopping center and then drove the car to A&Z, where he went inside. Graddick and Bedford waited several minutes for a telephone call from Windhom and then entered the store and committed the robbery. Graddick and Bedford exited the store, followed by Windhom, who drove them away. Bedford sat in the back seat and counted the money.

The security camera of a neighboring business made a video recording of the parking lot of A&Z, showing the three men arriving and leaving, and Graddick described the events as the video was played for the jury. On May 4, 2012, Graddick pled guilty to robbery by intimidation.

A person commits the offense of armed robbery when, “with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). Evidence was presented showing that Windhom drove the robbers to the scene, supplied the weapon, functioned as a lookout, and drove the getaway vehicle. “The evidence was sufficient to show that [Windhom] was a party to an armed robbery.” Windhom, 315 Ga. App. at 858 (1).

2. The trial court did not err in allowing Graddick to testify.

Windhom argues that the trial court erred in denying his motion in limine to prevent Graddick from testifying because he was not competent. In support of his argument, Windhom introduced at trial a July 15, 2010 report by a psychologist who performed a court-ordered competency evaluation of Graddick and concluded that he was not competent to stand trial. But almost two years later, on May 4, 2012, Graddick entered a guilty plea to robbery by intimidation, at which time the trial court made a finding that he was, in fact, competent to knowingly, intelligently, and voluntarily waive his constitutional rights. The instant trial took place September 17-19, 2012. In denying Windhom’s motion in limine, the trial court noted that no court had ever found Graddick to be incompetent; the only evidence of his incompetency was the psychologist’s opinion. Windhom has not shown that the trial court abused its discretion in denying his motion in limine, given that Graddick was found to be competent two years after the psychologist’s evaluation and only months before the instant trial occurred. See Rawls v. State, 315 Ga. App. 891, 892 (1) (730 SE2d 1) (2012) (“We review the trial court’s denial of a motion in limine for an abuse of discretion.”) (citation omitted).

3. The trial court did not err by allowing the video recording to go out with the jury.

Windhom argues that the trial court erred by allowing the video recording that Graddick narrated to go out with the jury, because the video recording was a continuing witness. But unlike a videotaped interview or a transcript of testimony, the video recording, which was admitted without objection,

is independent and original evidence, in and of itself, and does not depend on the credibility of the maker for its value. It is a true depiction of the event. Therefore, since the video [recording] ... was independent and original evidence, did not depend for its value solely on the credibility of the maker and was not a substitute for testimony, it was not subject to the continuing witness rule.

Mathews v. State, 258 Ga. App. 29, 31 (1) (572 SE2d 719) (2002) (citations and punctuation omitted).

4. The trial court did not err by refusing to give Windhom’s requested jury charges on a witness’s motive for testifying and mistake of fact.

(a) Windhom argues that the trial court should have given his requested charge on the motive of a witness to testify to enable the jury to evaluate the testimony of co-defendant Graddick. The record does not contain a copy of Windhom’s written requests to charge, so we cannot determine the legal accuracy of the charge he argues should have been given. See Carter v. State, 263 Ga. 401, 403 (4) (435 SE2d 42) (1993). However, although nothing in our record confirms it, defense counsel asserted at trial that his requests to charge were the same charges he had requested in Windhom’s first trial. And in his prior appeal, we rejected his argument about this charge, observing that

the court instructed on credibility of witnesses, the interest of a witness, impeachment, and motive of a witness. Our review of these charges shows that they substantially and adequately cover the principles contained in the requested charge.

Windhom, 315 Ga. App. at 861 (3) (b). The trial court gave these instructions in this trial as well. “The trial court’s charge, as actually given, was full and fair and substantially, covered all the legal principles relevant to the determination of [a witness’s motive for testifying].” Carter, 263 Ga. at 403 (4) (citations omitted).

(b) Windhom argues that the trial court should have given his requested charge on mistake of fact. As noted above, the record does not contain a copy of Windhom’s written requests to charge, so we cannot determine exactly what he requested on this issue or its legal accuracy. See Carter, 263 Ga. at 403 (4). However, in the prior appeal, we held that, although perhaps not reversible error, the better practice would have been to give Windhom’s “requested charge on mistake of fact, that is that the [s]tate has the burden of showing that the defendant did not act as a result of a mistake of fact.” Windhom, 315 Ga. App. at 862-863 (3) (e). Because of this ruling, in the instant case the trial court gave instructions on criminal intent, mistake of fact, and the state’s obligation to disprove affirmative defenses. The trial court explained that it would not label mistake of fact as an affirmative defense, but told defense counsel that he could argue that in closing.

Nothing in our record shows whether the mistake-of-fact charge Windhom requested in the instant trial is the same as the charge he requested in the first trial. We cannot determine how Windhom’s requested charge varied from the charge actually given. But “[t]he trial court’s charge, as actually given, was full and fair and substantially covered all the legal principles relevant to the determination of [the defense of mistake of fact].” Carter, 263 Ga. at 403 (4) (citation omitted). Consequently, Windhom has not shown error.

5. Windhom’s sentence does not violate the United States and Georgia Constitutions.

Windhom argues that his 20-year sentence is grossly disproportionate to the nature of the offense, in violation of the United States and Georgia Constitutions. Windhom’s sentence was within the statutory range for armed robbery. OCGA § 16-8-41 (b) (“A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). “[A] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.” Wilis v. State, 316 Ga. App. 258, 268 (7) (728 SE2d 857) (2012) (citation and punctuation omitted). For a court to find a punishment so disproportionate as to be cruel and unusual under the Eighth Amendment,

the punishment must fall within one of two classifications. See Graham v. Florida, 560 U. S. 48, 59 (II) (130 SC 2011, 2021-2022, 176 LE2d 825) (2010). First, a punishment may be unconstitutionally cruel and unusual in the rare circumstance where the defendant’s sentence is “grossly disproportionate” to the underlying crime. Id., 130 SC at 2022. Second, a punishment is unconstitutionally cruel and unusual if it violates certain narrow “categorical restrictions” enunciated by the United States Supreme Court. Graham, 560 U. S. at 59 (II), 130 SC at 2021-2022. Because [Windhom’s] sentence does not fall into either of these two classifications, this enumeration is without merit.

Id. (citations and punctuation omitted). And while Windhom does cite Ga. Const. of 1983, Art. I, Sec. I, Par. XVII and some Georgia cases “he does not argue ... any basis for reaching a different result under the state constitutional standard.” Id. at 269 (McFadden, J., concurring fully and specially).

Decided March 13, 2014.

Robert M. Bearden, Jr., for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       In the prior appeal, the appellant’s name was spelled as “Windhom.” In this appellate record, the appellant’s name is sometimes spelled as “Windhom” and sometimes spelled as “Windham.” We will refer to the appellant as Windhom, as we did in the prior appeal.


text:
    A13A2100.
    PARKER v. THE STATE.
    (756 SE2d 300)
   BARNES, Presiding Judge.

Jason Brent Parker was charged with speeding and driving under the influence with a blood alcohol level greater than 0.08 percent, and moved for a certificate of materiality under the Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24-13-90 et seq. Parker sought to obtain from an out-of-state witness testimony regarding the source code for the Intoxilyzer 5000, the device that was used to test his blood alcohol content. The trial court denied the motion, finding that Parker’s evidence was hearsay and that he failed to prove that the witness whose attendance he sought to compel was material. Parker waived his right to a jury trial and the parties submitted stipulated facts to the trial court, which found Parker guilty as charged. Parker appeals his conviction, asserting that the trial court erred in denying his request for a certificate of materiality seeking the Intoxilyzer 5000 source code. For the reasons that follow, we affirm.

Parker enumerates five errors, all relating to the trial court’s denial of his request for a certificate of materiality. He argues that the trial court (1) erred in excluding as hearsay the evidence he proffered at the motion hearing; (2) erred in holding that his evidence failed to show a logical connection to facts indicating an error in the test results; and (3) violated his state and federal constitutional rights to due process, compulsory process, and a fair trial. Parker also asserts (4) that federal courts have held that defendants are entitled to access to the source code of computer software to determine its reliability; and (5) that because the source code is relevant and the State has it in its possession, custody, or control, the State is required to disclose it under the discovery provisions of OCGA §§ 17-16-1 and 40-6-392 (a) (4). In response to Parker’s first four enumerations, the State argues that the trial court properly exercised its discretion in denying the motion, and contends that no facts in the record support Parker’s last enumeration.

As stipulated by the parties, a Georgia State Patrol trooper stopped Parker for traveling 72 mph in a 55 mph zone at around 9:30 p.m. The trooper smelled alcohol coming from the car and from Parker, and Parker admitted having drunk alcohol earlier that day at the Masters Tournament. Parker showed signs of impairment during field sobriety tests, was placed under arrest, and took breath tests on the Intoxilyzer 5000 that registered a 0.157 and 0.158 blood alcohol content.

1. Parker filed a motion seeking an out-of-state subpoena for agents of CMI, Inc., which manufactures the Intoxilyzer 5000, ultimately seeking the production of the machine’s source code for purposes of forensic analysis. The Uniform Act to Secure the Attendance of Witnesses from Without the State (“the Act”) “is the statutory means by which a witness living in a state other than Georgia can be compelled to attend and testify at a criminal proceeding in Georgia,” and the Act authorizes the issuance of a summons requiring the witness to bring documents with him. Davenport v. State, 289 Ga. 399, 400 (711 SE2d 699) (2011). In considering such a motion, the trial court must determine if the out-of-state witness is “material” and if that state has a similar law under which Georgia residents might be compelled to attend a proceeding in that state. Id. If so, the Georgia trial judge may issue a certificate that is presented to a judge of a court of record in the state where the witness is located. Id. at 401. The out-of-state judge then determines whether the witness is material and necessary to the Georgia criminal proceeding, among other things. Id.

Our Supreme Court has defined a “material witness” as a “ ‘witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.’ Black’s Law Dictionary (8th ed. 2004).” (Citation and punctuation omitted.) Davenport, 289 Ga. at 404. To establish that “the out-of-state witness who was to provide testimony regarding the source code was a ‘material witness’ ” in a case such as this one, the movant must “show that the witness’ testimony regarding the source code bore a logical connection to facts supporting the existence of an error in his breath test results,” as opposed to an error in the code itself. (Emphasis omitted.) Cronkite v. State, 293 Ga. at 478.

In this case, Parker argued in his motion that the blood alcohol content number generated by the machine was sufficient evidence to convict him of DUI per se, and that he was unable to challenge the machine’s reliability and accuracy without access to the source code. At the hearing, Parker proffered a transcript of his expert witness’s testimony from another proceeding, as well as two affidavits by that expert and three scholarly articles. The State objected to the proffer, arguing that it was hearsay, and that under OCGA § 24-1-2 (b), the rules of evidence applied to this hearing. The trial court agreed, observing that if it allowed “everything to be presented by proffer which is not agreed upon by stipulation, then there would never be a need for a hearing, ever, to determine whether [the witness was] material.” In its order denying the motion, the court found that the proffered exhibits were hearsay, “and without an opportunity to cross examine the expert witness or the authors of the proffered articles the State would not be able to properly present an opposing legal argument.”

Parker analogizes the requirements for obtaining a continuance in the absence of a subpoenaed witness with the requirements for obtaining a certificate of materiality to secure the attendance of an out-of-state witness. In the former situation, OCGA § 17-8-25 lists the requirements for obtaining the continuance, which include a showing that the witness was under subpoena, that his testimony would be material, and the facts expected to be proved by the absent witness. See Arnold v. State, 228 Ga. App. 137, 138 (491 SE2d 205) (1997). In Arnold, we addressed continuances under OCGA § 17-8-25 and held that a trial counsel’s proffer as to the absent witness’s materiality was sufficient, absent a counter-showing by the State. Id. Parker argues that a proffer should also be sufficient to establish the materiality of a witness in a hearing seeking a certificate of materiality to secure the attendance of an out-of-state witness. But a motion for continuance is not “a fact-finding proceeding” under OCGA § 24-1-2 (b) to which the rules of evidence apply; it is a criminal procedure motion under OCGA § 17-8-25.

Because Parker presented no admissible evidence during the hearing on his motion seeking a certificate of materiality, the trial court did not err in denying the motion.

2. Parker also argues that the State has the source code in its possession, custody, or control, and he should be able to acquire it through an out-of-state subpoena under both OCGA §§ 17-16-23 and 40-6-392, citing State v. Smiley, 301 Ga. App. 778(689 SE2d 94) (2009). Smiley, however, is not binding precedent but rather is physical precedent only. See Court of Appeals Rule 33 (a). Furthermore, that case explicitly did not address whether the State was obliged to produce the source code, noting that “the [S]tate is not obligated to produce information that is not within its possession, custody or control.” Id. at 781. Instead, absent a transcript of the evidentiary hearing on the motion to suppress, we were obliged to assume that the court properly exercised its judgment and discretion in granting the motion and suppressing evidence in light of a bad faith discovery violation by the State. Id. We have held that a trial court did not abuse its discretion in denying a defendant’s motion seeking discovery of the source code when the defendant failed to provide evidence that the State owned, possessed or controlled it. Hills v. State, 291 Ga. App. 873 (663 SE2d 265) (2008).

Decided March 13, 2014

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Dennis C. Sanders, District Attorney, Wiliam P.Doupé, Assistant District Attorney, for appellee.

In his argument, Parker includes no citations to the record to support his factual contention that “CMI has been acting as an arm of law-enforcement,” that “CMI is the exclusive provider of the Intoxilyzer; the only breath-testing machine used by Georgia law enforcement,” that “CMI and the State of Georgia have jointly fought to restrict access to the Intoxilyzer source code,” and that the State and the private company are joint participants in an enterprise. Accordingly, we do not address his argument that CMI’s actions should be imputed to the State under the Public Function Test, under which “the actions of private parties are imputed to the State where the functions are ‘traditionally the exclusive prerogative of the [S]tate.’ Willis v. Univ. Health Svcs., 993 F.2d 837, 840-841 (11th Cir. 1993).”

Judgment affirmed.

Miller and Ray, JJ., concur.

       “The ‘source code’ consists of human-readable programming instructions that play a role in controlling the internal calibration of the Intoxilyzer 5000 machine.” Cronkite v. State, 293 Ga. 476, 477, n. 2 (745 SE2d 591) (2013).


author: Miller, Judge.

text:
    A13A2242.
    JOHNSON v. THE STATE.
    (756 SE2d 303)
   Miller, Judge.

Following a jury trial, Kenneth Ray Johnson was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)) and terroristic threats (OCGA § 16-11-37 (a)). Johnson appeals from the denial of his motion for new trial, contending that (1) the trial court erred in denying his motion to suppress eyewitness identification; (2) the evidence was insufficient to support his convictions; and (3) he received ineffective assistance of counsel. For the following reasons, we affirm.

Viewed in the light most favorable to conviction, the evidence shows that, at approximately 11:30 on the night of March 2, 2011, the victim and four of his friends went to the Island Breeze nightclub in Chatham County to see a lip sync contest involving men dressed in women’s clothing. The nightclub was located on Montgomery Street between 41st Street and 43rd Street. At approximately 12:30 to 1:00 the next morning, the victim and his friends left Island Breeze and went to Mr. Wonderful’s nightclub.

On the way to the nightclub Johnson walked up behind the victim’s friend, Adrian, who was lingering behind the rest of the group. Johnson called Adrian all kinds of slurs, including “faggots, punks, [and] sissies” and said ‘You’re not even a real girl.” Johnson and Adrian argued for five to ten minutes, and Adrian told Johnson to get out of his face. Adrian also told Johnson he was calling the police.

Johnson then approached the victim and his friend, “Peaches,” who were standing at a corner about a block away. Johnson also told them ‘You punks wait right here, cause when I come back, I’m going to get my gun and I’m going to shoot you.” Johnson smelled like alcohol and marijuana, appeared to be intoxicated, was slurring his speech and was carrying a pool stick case. After about ten minutes, Johnson left. The victim called the police and told them there was a “dude” walking around with a black case, who made comments to his friends and threatened to shoot them. Adrian also called the police, and gave them a description of Johnson.

Shortly thereafter, the victim was waiting for a cab at a car lot on Montgomery Street and 40th Street when he saw Johnson walking down the street across from him. Johnson was wearing a black hooded sweatshirt, was carrying a red cup in one hand, and had his other hand behind his back. When Johnson reached the street corner, he hollered to the victim and tried to get the victim’s attention. When the victim responded, Johnson said “I told you I was going to come back and shoot one of you all.”

The victim told Johnson he was going to call police and then looked down to unlock his phone. When the victim looked back up, Johnson had a silver handgun pointed at him from across the street. Before the victim could unlock his phone, Johnson started shooting at him. The victim ran down the block while Johnson fired about four or five shots at him. One of the shots hit the victim in the back of the leg and exited through his kneecap. The victim then looked back and saw Johnson running down 40th Street. Johnson dropped the red cup while he ran.

Meanwhile, a bystander and a couple of people who were driving by called 911. Police responded about five to ten minutes later, and the victim told them what happened. About five minutes later, an ambulance arrived. After the police arrived, Adrian also returned to the scene and saw Johnson walking up the street and looking around. Johnson was not wearing the same clothes he had worn before. Instead, he was wearing a t-shirt and jeans.

After he saw Johnson, Adrian told police that Johnson was the person whom he and the victim were arguing with earlier and the one who threatened to shoot the victim. Johnson was taken into custody by one of the responding officers. After the officer placed Johnson in the back of the officer’s vehicle, Johnson told the officer that he was at the scene at the time of the shooting and that he ran away. Johnson said he came back because he dropped his phone at the scene. Shortly thereafter, the officer was advised by a detective to do a showup. The officer took Johnson out of his vehicle and, with the help of a sergeant, brought Johnson to the back of the ambulance where the victim identified Johnson as the man who shot him. Johnson’s phone was subsequently found across the street from where the victim was shot.

1. Johnson contends that the trial court erred in denying his motion to suppress the pretrial and in-court identification testimony.

“Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible.” (Citation and punctuation omitted.) Butler v. State, 290 Ga. 412, 414 (3) (721 SE2d 876) (2012). A one-on-one showup

may be permissible in aiding a speedy police investigation and because there were possible doubts as to the identification which needed to be resolved promptly and in order to enhance the accuracy and reliability of identification in order to permit the expeditious relief of innocent subjects. We generally first determine whether the identification procedure was impermissibly suggestive.

(Citations and punctuation omitted.) Id. at 414-415 (3). If the showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive, and we need not determine whether there was a substantial likelihood of irreparable misidentification. See id. at 415 (3); see also Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009).

Here, the evidence showed that officers responded to the scene shortly after the shooting, and Johnson was taken into custody after the victim’s friend, Adrian, told police that Johnson was the one who threatened to shoot the victim. Shortly thereafter, officers brought Johnson to the back of the ambulance where the victim identified Johnson as the man who shot him.

The victim had multiple opportunities to see Johnson prior to the showup, including one conversation during which Johnson and the victim were just a few feet apart on a lighted street, and another encounter during which the victim had enough time to form an opinion that Johnson was intoxicated. Although Johnson was standing across the street when he returned and shot the victim, the victim was positive that Johnson was the man who shot him because Johnson’s hood fell off when he ran away and the victim could see Johnson’s face. Since the victim had an opportunity to view Johnson at close range on two occasions prior to the shooting and the showup was conducted at the scene shortly after the shooting, it was not impermissibly suggestive. Accordingly, the trial court did not err in finding that the victim’s identification of Johnson was reliable. See Butler, supra, 290 Ga. at 415-416 (3); Wallace, supra, 295 Ga. App. at 455 (1).

Even assuming that the showup was impermissibly suggestive, Johnson still had to show that there was a substantial likelihood of irreparable misidentification. See Butler, supra, 290 Ga. at 415 (3). In evaluating the likelihood of misidentification, we look to the totality of the circumstances, including

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U. S. 188,199-200 (III) (93 SCt 375, 34 LE2d 401) (1972).

Considering the totality of the circumstances, including the victim’s prior interactions and face-to-face conversations with Johnson, we find no substantial likelihood of misidentification. See Neil, supra, 409 U. S. at 201 (III); Mercer v. State, 268 Ga. 856, 857 (3) (493 SE2d 921) (1998). Therefore, the trial court did not err in denying Johnson’s motion to suppress the pretrial identification.

Finally, “notwithstanding any taint in pretrial identification procedures, a witness’s in-court identification may still be admitted if it has an independent origin from the illegal identification procedures involved.” (Citations and punctuation omitted.) Holbrook v. State, 209 Ga. App. 301, 302 (1) (433 SE2d 616) (1993). Here, the victim’s in-court identification of Johnson was clearly based on his earlier interactions and conversations with Johnson, not on his view of Johnson at the showup. See id. Accordingly, the trial court also did not err in denying Johnson’s motion to suppress the victim’s in-court identification of him.

2. Johnson further contends that the evidence was insufficient to support his convictions because the jury’s finding of guilt was based solely on the faulty showup identification. We disagree.

As set forth above, the trial court properly admitted the victim’s testimony identifying Johnson as the man who threatened to shoot him early in the morning on March 3, 2011, as well as the victim’s testimony that J ohnson was the man who returned shortly thereafter and shot him in the back of the leg. Moreover, the victim’s friend, Adrian, also identified Johnson as the person who threatened to shoot the victim. The weight and credibility of the victim’s and Adrian’s testimony was for the jury to decide based on all the facts and circumstances. See White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010). We conclude that the evidence was sufficient for the jury to find Johnson guilty of the crimes for which he was convicted. See Jackson, supra, 443 U. S. at 307; see also OCGA §§ 16-5-21 (a) (2) and 16-11-37 (a).

3. J ohnson also contends that his trial counsel and first appellate counsel rendered ineffective assistance.

(a) Without citing to any authority, Johnson argues that trial counsel was ineffective in failing to secure an expert on eyewitness identification and that his first appellate counsel was ineffective in failing to preserve this issue. We do not agree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

To establish the prejudicial effect of trial counsel’s failure to present certain evidence, an appellant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case. Absent a proffer of what the testimony of his expert would have been at trial, [Johnson] cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel taken the suggested course.

(Punctuation and footnote omitted.) Smith v. State, 303 Ga. App. 831, 835 (4) (695 SE2d 86) (2010). Johnson has failed to show prejudice in this case because he has offered no evidence as to what an expert on eyewitness identification would have opined. Id.; see also White v. State, 293 Ga. 635, 636 (2) (748 SE2d 888) (2013). Therefore, he has failed to establish that trial counsel was ineffective on this ground, or that appellate counsel was ineffective for failing to preserve the issue.

(b) Johnson argues that trial counsel was ineffective in failing to move for a continuance in order to adequately investigate the case and prepare for trial. We do not agree.

Johnson presented no evidence at the motion for new trial hearing to support his assertion that there was a reasonable probability that the outcome of his trial would have differed if trial counsel had moved for a continuance. See Walker v. State, 288 Ga. 174, 180 (3) (b) (702 SE2d 415) (2010). Notably, at the motion for new trial hearing, trial counsel testified that he reviewed the transcripts from the motion hearing in this case, met with Johnson, and reviewed all the case materials. Trial counsel also had the police officers’ reports and the witnesses’ recorded interviews. Although trial counsel did not know that Adrian was listed as a witness before trial, he stated that he had an opportunity to interview Adrian before he testified. Accordingly, the trial court properly denied Johnson’s ineffective assistance of counsel claim on this ground.

Decided March 13, 2014.

Darden Hastay, Laura G. Hastay, for appellant.

Meg E. Heap, District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

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

       We note that the victim testified at the motion to suppress hearing that the people in the ambulance told him that the police had a suspect.

       We reject Johnson’s additional contention that first appellate counsel failed to properly preserve this issue, because the transcript of the new trial hearing shows that first appellate counsel questioned trial counsel concerning his investigation and preparation for trial. We also reject Johnson’s irrelevant contention that two nontestifying witnesses had criminal records.


author: McFadden, Judge.

text:
    A13A2411.
    SCROCCA v. ASHWOOD CONDOMINIUM ASSOCIATION, INC. et al.
    (756 SE2d 308)
   McFadden, Judge.

Nancy Scrocca, the plaintiff in this premises liability case, appeals the grant of summary judgment to Ashwood Condominium Association, Inc. and its management company, Atlanta Community Services, Inc. Scrocca argues that the trial court erred by failing to find that the defendants had a contractual duty to remove ice and snow from the limited common elements of the condominium complex where she was injured. We find that the trial court correctly concluded that under the condominium documents, Scrocca, not the defendants, had the duty to remove the ice and snow from the walkway on which she fell. We therefore affirm the grant of summary judgment to the defendants. We do not reach Scrocca’s other claims of error based on various tort theories.

1. Facts.

Summary judgment is properly granted when 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). “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” Southern Telecom v. TW Telecom of Ga., 321 Ga. App. 110, 111 (1) (741 SE2d 234) (2013) (citation and punctuation omitted).

So viewed, the record shows that on January 9, 2011, the Atlanta area experienced a snowstorm. Several inches of snow fell. As a result of the storm, Scrocca, the owner of a unit in the Ashwood Condominiums, stayed in her condominium for several days. On January 13, Scrocca exited her condominium, intending to go to the grocery store. One part of the stoop at the entrance to her condominium appeared to her to have ice and snow on it, while the remainder appeared to be clear. Scrocca looked toward the walkway that led from her condominium to the parking lot; it appeared that the snow had melted along the lefthand side of the walkway. Scrocca walked along what she thought was the clear pathway and fell a short distance from her stoop, fracturing her wrist. Scrocca had not contacted the condominium association nor the management company to clear the snow and ice from the walkway.

Scrocca filed this action against the association and its management company, and the trial court granted the defendants summary judgment.

2. Under the condominium documents the duty to remove ice and snow was Scrocca’s.

We must look to the declaration of condominium to determine whether Scrocca or the association had the responsibility to clear the walkway of snow and ice because

[a] condominium association’s obligations and responsibilities toward the condominium property are dependent upon those allocated to it by the [Georgia Condominium Act, OCGA § 44-3-70 et seq.] and those stated in the condominium instruments, i.e., the declaration and bylaws, as decided by a majority of unit owners/association members____ A condominium association’s duty to its members . . . pursuant to OCGA § 51-3-1 [(duty of owner or occupier of land to invitee)] with regard to the common elements of a condominium property may be circumscribed by the terms of the condominium instruments/contract, and we must look to the terms of the contract, as well as the Act, in order to determine an association’s duties.

Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 244-246 (573 SE2d 405) (2002). The Amended and Restated Declaration of Condominium for Ashwood Condominium sets forth the parties’ duties. Section 10, entitled Maintenance Responsibility, provides in pertinent part as follows:

A. By the Owner. Each Owner shall have the obligation to maintain and keep in good repair all portions of his or her Unit and all Limited Common Elements assigned to the Owner’s Unit, except any portion of the Limited Common Elements or Unit which is expressly made the maintenance obligation of the Association as set forth in subparagraph (B) below.

In addition, each Unit Owner shall have the responsibility:

(1) To keep in a neat, clean and sanitary condition any Limited Common Elements serving his or her Unit.
B. By the Association. The Association, as a Common Expense, shall maintain, keep in good repair, replace and in the Board’s discretion, improve or alter the “Area of Common Responsibility,” which includes the following:
(i) All general Common Elements, except those portions that are identified as Owner responsibility under subparagraph (A) above; and
(ii) The following portions of the Units or Limited Common Elements:
(e) concrete porches, steps, stoops and walkways in front of the Units, and handrails or railing serving those items in the front of the Unit. . . .

So the walkway on which Scrocca fell was a limited common element. Therefore Scrocca had the duty to “keep [the walkway] in a neat, clean and sanitary condition,” while the association had the duty to “maintain, keep in good repair, replace and . . . improve or alter” the walkway. We must construe the declaration of condominium to determine which party’s duty encompassed the responsibility to remove snow and ice.

As we have recently reiterated,

contract construction proceeds in a series of steps, moving from one to the next only if necessary. The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Because the first two of these steps involve questions of law, the trial court’s application of them is reviewed de novo on appeal.

Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 74 (4) (746 SE2d 698) (2013) (citation and punctuation omitted). We conclude that the contract is ambiguous in some respect; the contract fails to specifically delegate responsibilities arising from the presence of ice or snow. In other words, neither provision regarding duties relating to the walkway unambiguously includes snow and ice. Thus we must applythe rules and canons of contract construction. See OCGA § 13-2-2.

When courts construe contracts, the primary purpose is ascertaining the parties’ intent:

[C]ourts should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others. That is, in construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual.

Freeman v. Smith, 324 Ga. App. 426, 435 (2) (750 SE2d 739) (2013) (citation omitted). See also OCGA § 13-2-3 (“The cardinal rule of construction is to ascertain the intention of the parties.”). One canon of contract construction is that “[w]ords generally bear their usual and common signification.” OCGA § 13-2-2 (2). Another canon of construction is that “words are given meaning by their context.” Estate of Pitts, 323 Ga. App. at 82 (4) (b) (ii) (citation and punctuation omitted).

With these principles in mind, we conclude that under the contract, Scrocca had the duty to remove snow and ice from the walkway. Both unit owners and the association had maintenance duties under the amended declaration of condominium. This is evident because both the unit owners’ duties and the association’s duties are listed under the section entitled “Maintenance Responsibility.” And although the unit owners’ responsibility related to the walkway is described as “to keep,” while the association’s responsibility related to the walkway is described as “to maintain,” those words are synonymous. The question, then, is what duties fall under Scrocca’s maintenance responsibility and what duties fall under the association’s maintenance responsibility.

Decided March 13, 2014

Jason T. Schneider, RobertM. Hammers, Jr., Kathleen M. EdwardsOpperman, Turkheimer & Hadden, John D. Hadden, for appellant.

The amended declaration of condominium describes Scrocca’s maintenance responsibility related to the walkway as “to keep the walkway in a neat, clean and sanitary condition.” The American Heritage Dictionary defines “neat” as “orderly and clean; tidy”; “clean” as “free from foreign matter or pollution”; and “sanitary” as “free from elements, such as filth or pathogens, that endanger health.” The American Heritage Dictionary of the English Language, Fifth Edition (retrieved from ahdictionary.com). These words, in the context of defining the parties’ maintenance responsibility, indicate that Scrocca’s responsibility includes removing extraneous foreign matter from the walkway. Snow and ice are such extraneous foreign matter. See Bolt v. United States, 509 F3d 1028, 1031 (III) (9th Cir. 2007) (landlord’s statutory duty to “keep all common areas of the premises in a clean and safe condition” includes an obligation to remove snow and ice).

The amended declaration of condominium describes the association’s maintenance responsibility related to the walkway as “[to] maintain, keep in good repair, replace and ... improve or alter.” The American Heritage Dictionary defines “repair” as “to restore to sound condition after damage or injury; fix”; “replace” as “to put back into a former position or place”; “improve” as “to raise to a more desirable or more excellent quality or condition; make better”; and “alter” as “to change or make different; modify.” The American Heritage Dictionary of the English Language, Fifth Edition (retrieved from ahdictionary.com). These words, in the context of defining the parties’ maintenance responsibility, indicate that the association’s responsibility is to keep the walkway structurally sound. Put another way, the association’s responsibility is to make permanent changes while Scrocca’s responsibility is to remove transient foreign matter.

“It is axiomatic that an action for negligence cannot be maintained if the defendant did not owe the plaintiff a legal duty.” Anderson v. Atlanta Comm. for the Olympic Games, 273 Ga. 113, 118 (5) (537 SE2d 345) (2000) (citation omitted). Because the association did not have a duty to remove snow and ice from the walkway, we affirm the grant of summary judgment to the defendants without addressing Scrocca’s remaining arguments.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Hawkins, Parnell, Thackston & Young, Alan F. Herman, Jennifer A. Mills, for appellees.


text:
    A13A2460.
    JAMES v. THE STATE.
    (756 SE2d 312)
   MCFADDEN, Judge.

Douglas Mitchell James appeals the trial court’s order denying his motion to withdraw his guilty plea. He argues that the trial court should have allowed him to withdraw his guilty plea after sentencing, because the court had not informed him of his right to withdraw the plea before sentencing. But because James entered a nonnegotiated plea, the trial court was not required to inform him of his right to withdraw the plea. Accordingly, its failure to do so does not serve as a basis for allowing the withdrawal of the plea. We thus affirm.

James was indicted for burglary, two counts of kidnapping, two counts of aggravated assault, two counts of armed robbery, two counts of robbery by intimidation, two counts of false imprisonment, two counts of theft by taking, criminal damage to property, and possession of a firearm by a convicted felon. He pled guilty, and the trial court sentenced him to two consecutive life sentences. Amonth later, James moved to withdraw his guilty plea. The trial court denied the motion, and this appeal followed.

James argues that the trial court erred in refusing to allow him to withdraw his plea because the court had not informed him of his unconditional right to withdraw that plea prior to the pronouncement of the sentence. See OCGA § 17-7-93 (b) (“At any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’ ”). As a result, he argues, he did not attempt to withdraw his plea until after the pronouncement of sentence.

Uniform Superior Court Rule 33.10 “requires the trial court to tell a defendant that it intends to reject a negotiated plea and to inform the defendant that [he] thus has the right to withdraw [his] plea.” Manley v. State, 287 Ga. App. 358, 359 (1) (651 SE2d 453) (2007). But that requirement only applies when the defendant enters a negotiated plea, which the trial court intends to reject. Id. Here, James entered a nonnegotiated plea. He answered affirmatively when the trial court asked him if he “under [stood] that there’s been no negotiated deal with the district attorney [and that he was] entering [his] plea[ ] blindly.” And James points to nothing showing that the trial court rejected a negotiated plea.

Decided March 13, 2014.

Jimmonique R. S. Rodgers, Brett W. Ladd, for appellant.

Rosemary M. Greene, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

James acknowledges that his plea was not “fully” negotiated but nonetheless argues that it was very similar to a negotiated plea because the state agreed to withdraw its petition for recidivist sentencing. But the record shows that there was no agreement between the state and James regarding his sentence, and James does not argue otherwise. His plea therefore was nonnegotiated, the trial court did not reject a negotiated plea agreement, and the trial court thus was not obligated to inform James of his right to withdraw the plea before sentencing. Rosser v. State, 273 Ga. App. 745, 746 (615 SE2d 842) (2005). See also Manley, supra, 287 Ga. App. at 359 (1) (although state made sentencing recommendations, “this fact does not transform a nonnegotiated plea into a negotiated one”) (citation and punctuation omitted).

Nor was James’s sentence a manifest injustice, as he argues on appeal. The trial court warned James at the plea hearing that he was “facing two life sentences plus 195 years,” and he acknowledged that warning. His sentence of two consecutive life sentences is within the range for a conviction of two counts of armed robbery. OCGA § 16-8-41 (b) (“A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). Moreover, “a trial court [is] authorized to sentence a defendant to life imprisonment for armed robbery, even when the defendant [is] not a recidivist.” Johnson v. State, 274 Ga. App. 848, 849 (2) (619 SE2d 488) (2005).

Judgment affirmed.

Doyle, R J., and Boggs, J., concur.