Boccia v. State

335 Ga.App. 687

782 S.E.2d 792

BOCCIA

v.The STATE.

No. A15A1660.

Court of Appeals of Georgia.

Feb. 12, 2016.

Donald Franklin Samuel, Atlanta, for Appellant.

Paul L. Howard Jr., Marc A. Mallon, for Appellee.

RAY, Judge.

Daniel Boccia and Brandon Cesari were tried jointly before a jury for crimes resulting from an altercation that occurred behind a fraternity house on the campus of the Georgia Institute of Technology ("Georgia Tech"). Both men were indicted for armed robbery (OCGA § 16–8–41 ); two counts of aggravated assault with intent to rob (OCGA § 16–5–21(a)(1) ); carrying a weapon in a school safety zone (OCGA § 16–11–127.1 ); and battery (OCGA § 16–5–23.1 ).¹ The jury convicted Boccia, who at the time of the crimes was a 21–year–old student at Georgia Perimeter College, of armed robbery, battery, and carrying a weapon in a school safety zone, but acquitted him on the two aggravated assault counts.² He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions for armed robbery and carrying a weapon in a school safety zone, that the trial court erred in how it instructed or failed to instruct the jury, and that the trial court erred in making comments that allegedly interfered with the plea negotiations. He also argues that his trial counsel was ineffective. For the reasons that follow, we affirm.³

The facts, as outlined in our earlier opinion in the related Cesari case, are as follows:

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that following a University of Georgia–Georgia Tech football game, Georgia Tech student Blake Bauer was in a friend's room at the Pi Kappa Phi fraternity house when he heard someone banging on the window. He went outdoors to investigate and saw two men who rushed at him and punched him in the face. He identified the men in court as Cesari and Boccia. He testified that Boccia punched him first, then Cesari punched him. The men punched him "at least ten times in the face."

Bauer fell down onto a PVC pipe, which he picked up and tried to swing at the men, hitting Cesari. He swung the pipe only once before Cesari snatched it from him. As Boccia grabbed him by the collar and backed him toward some air conditioning units, he saw that Cesari was pointing a knife at him. Bauer testified that the knife had approximately a three-inch blade. Both men demanded Bauer's wallet and money. Bauer denied having any money. Cesari then hit Bauer in the back of the head with the pipe. Bauer felt a searing pain and fell to the ground. Boccia began patting Bauer's pockets, looking for a wallet, so Bauer took out his wallet and handed it to Boccia. The men opened the wallet, and upon finding that it contained no cash, threw it at Bauer and left the scene. Jurors saw surveillance video of the incident.

Another Georgia Tech student witnessed the incident from his window in a nearby fraternity house. At about 2:00 a.m., he saw two men breaking bottles, then saw them retrieve a knife from their car and walk toward the Pi Kappa Phi house, where they began throwing PVC pipes that were three to four feet in length. He testified that the street lights and fraternity house lights were on and that he could see the men's faces. He identified Boccia and Cesari, whom he had seen earlier at a party in his own fraternity house, as the men he saw throwing the pipes. However, he could not recall which man had the knife. He saw Bauer walk out of the Pi Kappa Phi fraternity house. Although Bauer did not approach Boccia and Cesari aggressively, both Boccia and Cesari began punching Bauer, who fell to the ground. When the men backed Bauer into the corner by the air conditioning units, one of them hit Bauer in the head with a PVC pipe.

The witness called 911, and Georgia Tech police arrested Cesari and Boccia later that evening. Officers found a knife in Boccia's pocket. The knife was admitted into evidence at trial and shown to the jury.

Boccia testified at trial; Cesari did not. Boccia testified that he and Cesari, who were both intoxicated, were behind the Pi Kappa Phi fraternity house "throwing some stuff around" when he looked into one of the fraternity house's windows. He said Bauer came outside and confronted him with a PVC pipe, hitting him in the forehead. Cesari took the pipe from Bauer, and Cesari and Bauer began to fight. Boccia threatened Bauer and testified that he "remember [ed] having [Bauer's] wallet in my hands," though he denied asking Bauer for the wallet. More specifically, he testified at trial that Bauer "brandished his wallet out" saying "take my wallet," then threw it to the ground. He further testified that he was too drunk to recall why he picked up the wallet, but said he looked through it. When shown the knife, he testified that his grandfather had given it to him and that he had given it to Cesari at some point in the evening to open a beer bottle. He said Cesari threw the knife to the ground and that he picked it up, not knowing it may have been used in the altercation.

Cesari, supra at 606–07, 780 S.E.2d 56.

Boccia appeals from the denial of his motion for new trial.

1. Boccia argues that the trial court erred in failing to give, sua sponte, several jury charges, as outlined below. He further argues that his trial counsel was ineffective in failing to seek these jury instructions.

Pursuant to OCGA § 17–8–58(b), although no objection is made at the trial, appellate courts must conduct a plain error review when an appealing party properly asserts an error in jury instructions.

State v. Kelly, 290 Ga. 29, 32(1), 718 S.E.2d 232 (2011).

First there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Id. at 33(2)(a), 718 S.E.2d 232.

As to Boccia's claims of ineffective assistance of counsel,

Under Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. When reviewing the trial court's decision, this Court will accept the trial court's factual findings and credibility determinations unless clearly erroneous; however, we review the court's application of legal principles de novo.

If a defendant bases his ineffectiveness claim on trial counsel's failure to request a charge on a certain defense, it is irrelevant whether the trial court would have been required to give such a charge absent a request. Rather, the appropriate inquiry is whether trial counsel provided deficient representation in failing to request the charge, and if so, whether the defendant can meet the prejudice prong of Strickland v. Washington. In making the latter determination, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

(Citation and footnotes omitted.) Pierre v. State, 330 Ga.App. 782, 784 –785(2), 769 S.E.2d 533 (2015).

(a) Boccia argues that if the jury could have found from the evidence that the robbery was committed without the use of the knife as an offensive weapon, as charged, he was entitled to a charge on robbery by intimidation (unarmed robbery) or theft by taking as lesser-included offenses. See OCGA § 16–1–6.

(i) Lesser-included charges. Pursuant to OCGA § 16–8–40(a)(1), (2), "[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y use of force [or] ... [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another[.]" Under OCGA § 16–8–2, a person commits the crime of theft by taking "when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated."

Bauer testified that Cesari had a knife, and a witness, Alexander Layyous, testified that he saw a knife but could not identify whether Boccia or Cesari was holding it. Bauer testified that Boccia demanded his wallet and patted his pockets in an attempt to find it. Cesari, supra at 607, 780 S.E.2d 56. Bauer also testified that the men threatened him by "wav[ing] a knife in my face. The other one put his fists up into my face like—you know, like threatening to punch me more." Bauer testified that he was afraid.

Boccia, however, denied even knowing that a knife was involved in the incident. He acknowledged threatening Bauer but...