Stokes v. State

355 Ga.App. 565

845 S.E.2d 305

STOKES

v.The STATE.

A20A0537

Court of Appeals of Georgia.

June 18, 2020

G. Richard Stepp, for Appellant.

Daniel J. Porter, District Attorney, Nigel R. Lush, Andrea L. Alabi, Assistant District Attorneys, for appellee.

Miller, Presiding Judge.

A Gwinnett County jury convicted James Leroy Stokes of conspiracy to commit robbery as part of a home invasion that occurred in 2014. Stokes appeals from the trial court's denial of his motion for new trial, arguing that (1) his trial counsel was ineffective; and (2) the evidence was insufficient to support the verdict. Because Stokes failed to establish that his trial counsel was ineffective, and because the evidence was sufficient to support Stokes's conviction, we affirm.

Viewed in the light most favorable to the verdict,¹ the evidence adduced at trial showed that, in the early morning of August 6, 2014, two men forcibly entered the home of the victim, Adam Schrier. During the incident, one of the men shot Schrier in the chest and shot Schrier's girlfriend, Jami Smith, in the leg. The men then held Smith and her daughter captive in the living room with Schrier while they searched the residence. During the incident, the men repeatedly demanded that Smith tell them where to find "the money" and bound her and her daughter with duct tape. One of the men also fired another shot, which grazed Smith's shoulder and struck her daughter in the arm. At one point, Smith told the men she had money in her purse, which the men took. Once the men left, Smith called 911. Schrier passed away at the scene from his injuries.

During the week prior to this incident, Brian Brewner, Stokes's co-defendant, was staying at a hotel with his girlfriend. While at the hotel, Brewner met several times with James Staples. Brewner spoke to Staples about wanting to get back some drugs from Schrier, and Staples showed Brewner the location of Schrier's home on Google Maps. Brewner told his girlfriend that Staples had asked for his help with retrieving a large amount of drugs and cash from Schrier. On the evening prior to the home invasion, Brewner was with two other co-defendants, one of whom was talking about doing a "jug," or committing a robbery.

On the day prior to the home invasion, another of the co-defendants, Devon Jenkins, along with his girlfriend, rented a room from another hotel near the hotel where Brewner was staying. Jenkins's girlfriend testified at trial that Stokes, whom she knew as "Jizzle," was present when they rented the room and that Stokes stayed in the room with Brewner, Jenkins, and the other co-defendants on that day. She testified that before the men left the room, she overheard one of them say that "Jizzle [Stokes] should drive because he knows how to drive better than anyone else." She further testified that she saw Stokes and the other co-defendants leave in Brewner's white pickup truck.

The men returned to the hotel later that morning. When Brewner's girlfriend awoke that morning, she saw Stokes sleeping in the living area of the hotel room with the other co-defendants. She also had breakfast with Stokes and the other co-defendants at the hotel that morning. Sometime after the incident, Jenkins told his girlfriend that he had gone to rob an individual on the incident date, that "something happened," and that he had shot someone. Jenkins also told her that another accomplice had tried to leave the others behind during the home invasion, but Stokes stopped him from doing so.

A grand jury indicted Stokes and four other co-defendants on a number of counts, including one count of conspiracy to commit robbery ( OCGA § 16-4-8 ). A jury convicted Stokes of conspiracy to commit robbery and acquitted him of all other counts, and the trial court sentenced Stokes to serve ten years in prison. Stokes filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. Stokes first asserts that his trial counsel rendered ineffective assistance by failing to file a general or special demurrer to the conspiracy count in the indictment and by failing to object to the trial court's jury charge on conspiracy to commit robbery. We conclude that trial counsel was not ineffective.

In order to evaluate [Stokes's] claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington , 466 U.S., 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires [Stokes] to show that [his] trial counsel's performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. In addition, there is a strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption.

(Citations and punctuation omitted.) Roberts v. State , 344 Ga. App. 324, 334 (4), 810 S.E.2d 169 (2018).

(a) Stokes first asserts that his trial counsel was ineffective in failing to object to the trial court's jury charge as to conspiracy to commit robbery. We disagree.

The Georgia robbery statute provides that "[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: (1) [b]y use of force; (2) [b]y intimidation ...; or (3) [b]y sudden snatching." OCGA § 16-8-40. In the present case, the indictment stated that Stokes

conspire[d] to commit a violation of OCGA [§] 16-8-40, the offense of Robbery, and one or more of the conspirators did perform one or more of the following overt acts, to wit locate the residence of Adam Schrier, plan to forcibly enter said residence and take methamphetamine and United States currency from the presence of others, and drive to the residence[.]

The trial court charged the jury on conspiracy to commit robbery as follows:

A person commits robbery when with intent to commit theft, that person takes property of another from the person or the immediate presence of another by the use of force, by intimidation, by use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to that person or to another. The essential elements of the offense that the State must prove beyond a reasonable doubt are that the taking was done with the purpose to commit theft against the will of the person robbed and by force, by intimidation, ... or by the use of threats or coercion, or by placing such person or another in fear of immediate serious bodily injury to himself or herself or another.

As to ... conspiracy to commit robbery, I charge you that a person commits conspiracy to commit a crime when that person, together with one or more other persons, conspires to commit any crime, and any one or more of such persons does any overt act to bring about the object of that conspiracy. The defendants in this case have been charged with conspiracy to commit the crime of robbery. The crime of robbery has been previously defined for you.

Thus, Stokes argues that, because the trial court's instruction included the definitions of robbery by intimidation, threat, or coercion ( OCGA § 16-8-40 (a) (2) ), the trial court erred by instructing the jury that they could convict Stokes for conspiracy to commit robbery on a basis other than what was charged in the indictment.

At the outset, Stokes is correct that "instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial[.]" Williams v. State , 309 Ga. App. 688, 691 (2), 710 S.E.2d 884 (2011). Simultaneously, however,

it is not usually cause for new trial that an entire Code section is given. A charge on a Code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict. Further, in such event, any error is not harmful if the trial judge confined the elements of the crime to those charged in the indictment.

(Citation and punctuation omitted.) Id. In the present case, it does not appear that the trial court's charge could have misled the jury into convicting Stokes on a basis other than what was charged in the indictment. The trial court instructed the jury that "[t]he burden of proof rests upon the State to prove every material allegation of the indictment," and the trial court sent the indictment out with the jury during its deliberations. As such, the trial court did not err in instructing the jury on conspiracy to commit robbery, and therefore Stokes's trial counsel did not render ineffective assistance by failing to object to the trial court's jury instruction. See Wallace v. State , 277 Ga. App. 280, 281-282 (3), 626 S.E.2d 229 (2006) (trial court did not err by reading the entire Code section in giving jury instruction on armed robbery where the trial court instructed the jury that it was authorized to return a guilty verdict only if it believed beyond a reasonable doubt that the defendant committed armed robbery "as alleged in the indictment," and indictment was sent out with the jury during deliberations); Williams , supra, 309 Ga. App. at 691-692 (2), 710 S.E.2d 884 (trial counsel was not deficient for failing to object to trial court's jury charge on felony obstruction where trial court's reading of the entire code section was not reversible error).

(b) We also determine that the conspiracy count as alleged in the indictment was sufficient to withstand both a general and special demurrer, and so trial counsel was not ineffective for failing to file either demurrer.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. An indictment shall be deemed sufficiently

...