Hall v. State

361 Ga.App. 568

865 S.E.2d 183

HALL

v.The STATE.

A21A0840

Court of Appeals of Georgia.

October 25, 2021

James S.V. Weston, Augusta, for Appellant.

Kevin Richard Majeska, Henry Wayne Syms Jr., Jared Tolton Williams, Augusta, for Appellee.

Reese, Judge.

This is Bertram Hall's second appeal in this Court. In his prior appeal, we held that the evidence was sufficient to support his conviction for burglary, but remanded for an order on his constitutional speedy trial claim, and declined to consider his remaining arguments on appeal.¹ The trial court subsequently entered a new speedy trial order, and Hall now appeals, arguing that the trial court erred in: (1) allowing the State to present evidence regarding his burglary conviction from 1990; (2) failing to instruct the jury on criminal trespass; (3) finding that he did not receive ineffective assistance of counsel; (4) failing to recuse itself because the trial judge previously represented Hall; and (5) denying his motion for discharge and acquittal for deprivation of his right to a speedy trial. For the reasons set forth infra, we affirm.

We summarized the facts regarding the burglary in Hall's previous appeal:

The house that was burglarized ("Subject House") was located at 2376 Old McDuffie Road in Richmond County. As of the date of the break-in, no one had been living there for at least eleven months — its former owner/resident had been killed in June 2013.

At about 12:10 a.m. on Thursday, May 29, 2014, the man who had recently begun living intermittently next door to the Subject House was alerted by the loud noise of a vehicle repeatedly traveling up and down the street. The man (hereinafter, "Tenant") had become familiar with the distinctive sound as coming from a certain white van with red rims. Earlier that week, the Tenant had observed a man from that van intruding into the house in which he (the Tenant) was living. Thus concerned that the van had returned to the neighborhood, the Tenant went outside to covertly monitor the situation.

The Tenant saw the white van with the red rims stop briefly at the Subject House, where a passenger exited the vehicle. Shortly thereafter, the Tenant heard what sounded like a window being broken. The Tenant called his landlord who was living in the house on the other side of him, and reported what he had seen and heard at the Subject House. The landlord relayed the Tenant's report to police, then joined the Tenant outside. Meanwhile, the driver of the van traversed up and down the street several more times, before eventually parking at the Subject House.

Responding officers arrived on the street with sirens activated and lights flashing, but drove past the Subject House. The driver of the van abruptly cranked the vehicle and sped away. When the officers circled-back toward the Subject House, they were flagged down by the Tenant and his landlord who gave their reports. One of the officers entered the Subject House and discovered a man inside; the man was handcuffed, walked outside, questioned, and eventually placed in the back of a patrol car.

Shortly thereafter, the loud white van with the red rims cruised by the Subject House. Identified by the Tenant and the landlord as the vehicle that had just fled the scene, the van was stopped by police. Hall was driving the van; after a brief roadside talk, police allowed Hall to drive away.

The man who was removed from the Subject House was Ricky Lee Goree. After waiving his Miranda rights, he gave a statement to an investigator assigned to the case. In his statement, Goree identified (appellant) Hall as the driver of the white van with red rims who had dropped him off at the Subject House. Goree recounted that Hall had promised to give him cash if he would help him remove from the house a furnace, a couch, and curtain rods. Goree admitted that he had agreed to do so, and thus entered the house. Goree told in his statement that before Hall dropped him off at the Subject House on the night in question, Hall had pointed out two other "abandoned" houses in the same neighborhood as the Subject House; Hall revealed to Goree that he (Hall) had already removed appliances out of one, and was planning to "hit" the other one.

...

Goree was co-indicted with Hall on the burglary charge. He entered a negotiated guilty plea pursuant to which he agreed to testify at Hall's trial. On the stand at Hall's trial, Goree admitted that police had caught him inside the Subject House at the time in question. Goree characterized the house as "abandoned," and recounted that Hall had driven him there in a white van with red rims. Goree testified that he took tools with him into the Subject House. Goree testified that although Hall left to run an errand, their plan was that Hall would return to the Subject House and pick him up "after I got done what I had to (sic.) done."

...

During the interview with the investigator, the Tenant stated that the person who had twice broken into the house in which he was living was the same man who was driving the van when the Subject House was burglarized. The Tenant also gave a physical description of that man. The Tenant's interview was recorded, and played for the jury.

...

The State ended its case in chief with evidence that Hall had been involved with the burglary of a residence in 1990. Moments after that crime was reported to law enforcement, Hall was arrested after he was stopped driving the reported truck that contained items stolen from the residence, including a sink and cabinets. In a police statement, Hall admitted that he had committed the burglary.

Fifty-three years old at the time of his trial for the instant burglary charge, Hall took the stand as the sole defense witness, and denied having any involvement in the charged crime. Hall admitted that Goree had been a passenger in the van that he was driving shortly before the Subject House was burglarized, but elaborated that Goree had asked him for a ride to someone's house to fix a car, that he had agreed to give Goree a ride, that he had thus "dropped [Goree] off on Old McDuffie road with lights on, cars in the yard," and that he had then proceeded on his way to take care of an errand. Hall testified that as he was heading back home, he went back to try to get Goree "at the house with lights on and cars in the yard; it wasn't an abandoned house." About that time, Hall recounted at trial, he was pulled over by police, was asked about the man to whom he had just given a ride, and was then allowed to go about his way.

...

On cross-examination, Hall acknowledged that he had been convicted several times before for: (i) a burglary committed in January 2010; (ii) two other burglaries for prying open stores and stealing cigarettes; and (iii) a 2008 burglary for entering a business. Hall insisted, however, he had "paid for [his] mistakes" and that those convictions had nothing to do with the burglary for which he was then being prosecuted.²

After our remand from Hall's first direct appeal, the trial court denied Hall's speedy trial claim. This appeal followed.

We review the trial court's rulings on the admission of other acts evidence and Hall's constitutional speedy trial claim for an abuse of discretion.³ In reviewing Hall's ineffective assistance of counsel claim, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."⁴ Whether a jury instruction of a lesser-included offense was warranted and whether the circumstances necessitated recusal are legal questions we review de novo.⁵ With these guiding principles in mind, we now turn to Hall's claims of error.

1. Hall argues that the trial court erred in admitting other transaction evidence regarding a burglary from 1990 under OCGA § 24-4-404 (b) ("Rule 404 (b)"). He contends that the prejudicial effect of the evidence outweighed its probative value, and that the evidence only showed that Hall had a propensity to commit burglaries, an impermissible purpose.

Rule 404 (b) provides, in relevant part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.⁶

However,

[e]ven relevant evidence offered for a proper purpose under Rule 404 (b) may be excluded under OCGA § 24-4-403 ("Rule 403") ... "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."⁷

Thus, to summarize, in order for the evidence to be admissible, the State must show that:

(1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant's character;^{[8 ]} (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.⁹

In this case, the 1990 burglary was relevant to show Hall's intent. Hall's intent was the central question for the jury below: whether Hall was merely giving Goree a ride, or whether Hall and Goree were accomplices in the burglary. Because Hall's intent was at issue, this other act evidence is relevant to an issue other than Hall's character under Rule 404 (b).¹⁰

Nor was the probative value of the evidence outweighed by unfair prejudice under Rule 403. "The exclusion of relevant evidence under this [rule] is an extraordinary remedy which should be used only sparingly, since it permits the trial court to exclude concededly probative evidence."¹¹ Hall strongly contested the issue of intent, and the trial court...