Owens v. State

324 Ga.App. 198

749 S.E.2d 783

OWENS

v.The STATE.

No. A13A1449.

Court of Appeals of Georgia.

Oct. 9, 2013.

Hayden Lee Willis, for Appellant.

J. David Miller, Dist. Atty., Brian Allen McDaniel, Asst. Dist. Atty., for Appellee.

McMILLIAN, Judge.

Roy Owens appeals the denial of his motion for new trial following his conviction by a jury on one count of armed robbery and one count of possession of a firearm during the commission of a felony. On appeal, he asserts that the trial court erred in denying his motion for new trial because he received ineffective assistance of counsel at trial and during his presentence hearing. Owens also asks that his case be remanded for re-sentencing because he asserts that the trial court erred in failing to consider mitigating and aggravating circumstances in pronouncing sentence.

Viewed in the light most favorable to the verdict,¹ the evidence at trial showed that shortly after opening up the Family Dollar store in Tifton at around 8:00 a.m. on May 26, 2011, store manager Jacob Bias was approached by a masked man. Bias said that the man was wearing a white sweatshirt,² dark pants, and a black mask that covered most of his face. The man grabbed the back of Bias's shirt, put a gun to his head, and told Bias to take him to the store's safe. As Bias reached into his pocket to grab his keys, the man said, "Don't try anything stupid. The gun is loaded." When Bias bent down to open the safe, the man put the gun to the back of his head. And when Bias handed over the money, the man reached around and pepper sprayed him. At around 8:05 to 8:10 that morning, Janey Finehart was parking in front of the Family Dollar store when she saw a man run out of the store, pick up a bicycle and begin riding away. She said that the man was wearing a gray hoodie and had something black over his face.

Natasha Godfrey of the Moultrie Police Department responded to the robbery report and interviewed Bias and Finehart. She notified other responding officers that the suspect was wearing "a white hoodie, possibly white or gray in color," and that he had on a mask. She also indicated the direction in which the suspect was heading. As Deputy Terry Gibson of the Colquitt County Sheriff's Department headed toward the crime scene in response to the report, he saw a man walking away from a dumpster behind an apartment building near the robbery scene. The man placed his hand partially over his face and ran into the back door of an apartment. Officers secured both the front and back doors of the building, while Gibson and another officer searched the area surrounding the dumpster. Between the back wall of the dumpster and the building, they located a "grayish" hoodie and a small container of pepper spray. Later, when the same man seen entering the apartment came out again, he was placed into custody. That man was subsequently identified as Owens.

Sean Bostick, an investigator with the Colquitt County Sheriff's Department, also responded to the robbery report and began circling the area looking for the suspect. The report indicated that a bicycle was involved, and during Bostick's search, he saw a bicycle lying on a curb, partially in the roadway, near an alley that cut through the same apartment complex. The bicycle was located in an area near the apartment where Owens was apprehended. Other officers found a black "do-rag" scarf near the area where Bostick located the bicycle.

Anterianna Walker, Owens' cousin, testified that sometime after 8:00 a.m. on the morning of the robbery, she was inside an apartment at the same complex with her mother when she heard Owens banging on the door. When Anterianna let him inside, she noticed that he was sweating so much that his shirt was wet. She also saw that he had a zippered bank bag in his pocket and a gun. Owens placed both of these items down into furniture in the apartment. He then went upstairs to use the phone and repeatedly looked out the windows where Anterianna could see the police. Owens was wearing pants at the time, but changed into a pair of Anterianna's gym shorts. LaToya Walker, Anterianna's mother, testified she was awakened that morning when Owens asked to use her phone. When she learned that police were outside the apartment, she asked Owens what he had done. Although he denied he had done anything, he told LaToya at one point that he had done "nothing that they can prove." LaToya later granted police permission to search her apartment.

Dave Underwood, an investigator with the Moultrie Police Department, and David Corona, an investigator with the Colquitt County Sheriff's Department, participated in the search of the Walkers' apartment. During that search, police located a pair of pants and a gun stuffed in a chair. They also located a money bag and $549 in cash stuffed inside a loveseat. LaToya Walker stated that she did not own a firearm, nor did she keep a green zippered bank bag stuffed in her furniture. Underwood identified State's Exhibit 4 as the money bag police located in the Walkers' apartment and State's Exhibit 26 as the gun they recovered there.

Bias also identified State's Exhibit 4 as the bag from the Family Dollar safe that he gave to the masked man, and Owens's brother, Matthew Stringer, identified State's Exhibit Number 26 as a gun he owned. Stringer testified that on the morning of the robbery, he was awakened by a call from Owens asking him to come to LaToya Walker's house right away. Before Stringer left his house that morning, he noticed his gun was missing, although he had seen it there the night before.

Thereafter, Owens was charged with and convicted of one count of armed robbery and one count of possession of a firearm during the commission of a felony. After denial of his motion for new trial, this appeal followed.

1. Owens asserts that he received ineffective assistance of counsel at trial because his attorney (a) failed to move for a mistrial after learning that the jurors had not been provided with any means of taking notes; (b) failed to move for a directed verdict at the close of the State's case; and (c) allowed an agent of the State to attempt to convince him to accept the State's plea offer.

"A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the trial court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) State v. Crapp, 317 Ga.App. 744, 745(2), 732 S.E.2d 806 (2012). And in considering Owens's arguments, we apply

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), [which] asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.

(Punctuation and footnote omitted.) Bruce v. State, 252 Ga.App. 494, 498(2), 555 S.E.2d 819 (2001). "There is a strong presumption that counsel's conduct falls within the range of sound trial strategy and reasonable professional judgment. [ Strickland, 466 U.S. at 689, 104 S.Ct. 2052]." Newkirk v. State, 290 Ga. 581, 582(2), 722 S.E.2d 760 (2012).

[A]nd the defendant bears the burden of overcoming this presumption. To carry that burden, the defendant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not, or put another way, that his lawyer made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.

(Citations and punctuation omitted.) State v. Worsley, 293 Ga. 315, 323(3), 745 S.E.2d 617 (2013). See also Hill v. State, 291 Ga. 160, 164(4), 728 S.E.2d 225 (2012) ("The likelihood of a different result must be substantial, not just conceivable.") (citation omitted).

(a) Owens contends that his trial counsel was deficient in failing to move for a mistrial after the trial judge stated, as the State's fifth witness was taking the stand, that he had intended at the start of trial to offer the jury pads and pencils for note-taking. The judge indicated that "if the jury thinks it would be helpful, we can do that right now." Owens argues that notepads would have been helpful to the jury in light of conflicts in the evidence already presented. He asserts that his trial counsel should have moved for a mistrial at this point or at least demanded that the jury be furnished with materials for taking notes. But the transcript indicates that when the trial judge offered the jurors pads and pencils, they declined the offer. Owens offered no evidence on this issue at the hearing on the motion for new trial beyond his trial counsel's testimony that he never considered moving for a mistrial or demanding that note-taking materials be provided to the jury.

We know of no provision entitling a defendant to demand that jurors be furnished with the means for taking notes in every case, nor has Owens pointed us to any such law. To the contrary, absent special or unusual circumstances, the decision whether to allow the jury to take notes lies in the sound discretion of the trial court. See Potts v. State, 259 Ga. 96, 104(21), 376 S.E.2d 851 (1989) (trial court did not abuse discretion in allowing jurors to take notes); Miller v. State, 307 Ga.App. 598, 598–599, 705 S.E.2d 697 (2011) (within trial court's discretion to allow jurors to take notes); Williamson v. State, 142 Ga.App. 177, 178(3), 235 S.E.2d 643 (1977) (trial court did not abuse discretion in instructing juror not to take notes because the case was not complicated); White v. State, 137 Ga.App. 9, 10(1), 223 S.E.2d 24 (1975) (in absence of special or unusual circumstances, note-taking left to judge's discretion). We find no special or unusual...