Ward v. State

339 Ga.App. 621

794 S.E.2d 246

Ward

v.The State.

A16A1339

Court of Appeals of Georgia.

November 18, 2016

Margaret Elizabeth Heinen, for Appellant.

Forest Lee Miles, Herbert McIntosh Poston Jr., for Appellee.

McFadden, Judge.

After a jury trial, Lavalis Ward was convicted of criminal attempt to commit armed robbery, two counts of burglary, possession of a firearm during the commission of a crime, possession of a tool for commission of a crime, possession of a controlled substance, and possession of a firearm by a convicted felon. Ward appeals, claiming that his trial counsel was ineffective; however, Ward has failed to show that his counsel's performance was both deficient and prejudicial. Ward also challenges the trial court's admission of certain evidence, but he has not shown that the court abused its discretion in its evidentiary rulings. Finally, Ward contends that the attempted armed robbery and burglary offenses should have been merged for purposes of sentencing. We agree that the two burglary counts, which were based on a single illegal entry into a building, should have been merged; but the attempted armed robbery and burglary offenses were not based on the same conduct and thus properly were not merged for sentencing. Accordingly, we affirm in part, vacate in part, and remand for resentencing on the burglary counts.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence." Hall v. State , 335 Ga.App. 895, 783 S.E.2d 400 (2016) (citation omitted). So viewed, the evidence shows that on June 19, 2011, at approximately 2:30 in the morning, Ward and an accomplice went to the victim's apartment to steal money that they had learned was supposedly hidden under a mattress. Ward forced his way into the apartment with a handgun while his accomplice waited outside. As Ward ransacked the apartment looking for the money, he threatened and hit the victim with the gun. After failing to find the money, Ward and his accomplice fled.

The state also introduced evidence of Ward's prior convictions arising from a similar home invasion.

1. Tape recording.

Ward contends that the trial court erred in allowing the state to play a tape recording because it contained statements from a detective that invaded the jury's province by addressing an ultimate issue of fact. However, as Ward notes in his brief, this objection to the tape recording was not raised at trial; rather, his attorney raised only a Miranda objection to the tape. Because no ultimate issue objection to the evidence was raised at trial, Ward "may not now raise it for the first time on appeal. Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court." Holmes v. State , 271 Ga.App. 122, 123 (1), 608 S.E.2d 726 (2004) (citation and punctuation omitted). See also Batten v. State , 295 Ga. 442, 444 (2), 761 S.E.2d 70 (2014) (ultimate issue objection to investigator's testimony was not preserved for appellate review).

2. Song lyrics.

Ward contends that the trial court erred by allowing admission of redacted lyrics of a rap song he had written, arguing that the lyrics were irrelevant and unduly prejudicial. "The exclusion of evidence that is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion." Taylor v. State , 297 Ga. 132, 135 (3), 772 S.E.2d 630 (2015) (citation and punctuation omitted). Both this court and our Supreme Court have held that a trial court does not abuse its discretion in admitting evidence of a defendant's written lyrics when the evidence is relevant to some issue in the case. See Taylor , supra (no error in admitting rap lyrics referencing a particular type of gun); Castillo v. State , 281 Ga. 579 (7) (a), 642 S.E.2d 8 (2007) (no error in admitting song lyrics suggesting defendant might be inclined to violence); Thomas v. State , 270 Ga.App. 181, 183 (2), 606 S.E.2d 275 (2004) (no error in admitting song lyrics suggesting that defendant might be inclined to engage in violent encounter with police). Here, the state contended, and presented evidence showing, that Ward had attempted to intimidate various witnesses from testifying against him in this case. The rap lyrics in question referenced violence toward witnesses and thus were relevant to the issue of witness intimidation. Accordingly, "[t]he trial court did not abuse its discretion by admitting this relevant evidence." Taylor , supra (citation omitted).

3. Drug paraphernalia.

Ward claims that the trial court erred in allowing the state to introduce evidence of drug manufacturing paraphernalia found during a search of his home because it impermissibly placed his character in issue. But even if we assume, without deciding, that the court erred in allowing the evidence, "the error [was] harmless because ... the evidence of [Ward's] guilt[, including the victim's eyewitness identification of Ward, the accomplice's incriminating testimony, and the similar transaction,] was overwhelming and it is therefore highly probable that the admission of the challenged [evidence] did not contribute to the verdict. [Cit.]" Johnson v. State , 292 Ga. 785, 789 (4), 741 S.E.2d 627 (2013) (any error in allowing evidence of defendant's involvement in a drug transaction for which he was not on trial was harmless due to overwhelming evidence of guilt). Accord Ingram v. State , 232 Ga.App. 802, 804, 503 S.E.2d 70 (1998) (any error in admitting evidence of defendant's commission of independent crime was "harmless given the overwhelming evidence of [his] guilt.").

4. Ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Ward

must show [both] that trial counsel's performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel's deficient performance. If [Ward] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State , 290 Ga. 883, 889 (7), 725 S.E.2d 305 (2012) (citations and punctuation omitted). Ward has failed to show that his trial counsel's performance was both deficient and prejudicial.

a. Motion for directed verdict of acquittal.

Ward complains that his trial counsel was ineffective in moving for a directed verdict of acquittal on the armed robbery count, theorizing that the motion prompted the state to request a jury charge on attempted armed robbery as a lesser offense. At the motion for new trial hearing, counsel testified that his reason for the motion for a directed verdict of acquittal was the lack of evidence showing that anything was taken from the victim. When asked about the state's ability to request attempted armed robbery as a lesser included offense, counsel responded, "Well, I guess they were free to assert any theory they had that was supported by the evidence."

Generally, decisions on whether to raise, and how to argue, motions are matters of trial strategy. Taylor v. State , 337 Ga.App. 486, 492 (4) (a), 788 S.E.2d 97 (2016) ; Minor v. State , 328 Ga.App. 128, 142 (8) (b), 761 S.E.2d 538 (2014). "As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel." Smith v. State , 335 Ga.App. 742, 746 (3), 782 S.E.2d 824 (2016) (citation and punctuation omitted). Moreover

Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate.

Powell v. State , 198 Ga.App. 509, 511–512 (1), 402 S.E.2d 108 (1991) (citations and punctuation omitted).

Here, trial counsel's decision to move for a directed verdict of acquittal due to insufficient evidence was certainly a reasonable strategy, especially since the jury did not find Ward guilty of the very offense that was the subject of that motion. The mere "fact that [Ward] now finds fault with trial counsel's strategy does not require a finding that he received deficient representation. [Cit.] Given [Ward's] failure to demonstrate error by the trial court, we will not disturb its denial of [his] motion for new trial based on ineffective assistance of counsel. [Cit.]" Zapata v. State , 291 Ga.App. 485, 662 S.E.2d 271 (2008) (rejecting claim that trial counsel was ineffective in moving for a directed verdict of acquittal because such motion allowed the state to reopen the evidence). See also Hicks v. State , 337 Ga.App. 567, 571 (4), 788 S.E.2d 502 (2016) (finding that counsel's strategic decision to move for a directed verdict did not amount to ineffective assistance).

b. Bulletin.

Ward contends that his trial counsel was ineffective in failing to raise an improper character evidence objection to a police officer's testimony that there was a bulletin with Ward's information on it in the police station. However, even if such a character objection would have been appropriate, Ward "has not met his burden of showing prejudice. The overwhelming evidence of his guilt forecloses the reasonable probability that the trial result would have been different if trial counsel had objected to the testimony." Andemical v. State , 336 Ga.App. 661, 667 (4) (a), 786 S.E.2d 238 (2016) (citation omitted).

c. Similar transaction testimony.

Ward claims his trial counsel was ineffective in failing to object to hearsay during a detective's...