Abdur-Raheem Haneef Ali v. State

• Court: Court of Appeals of Georgia
• Decided: September 28, 2016
• Docket: A16A0864
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., MCFADDEN and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

September 28, 2016

In the Court of Appeals of Georgia A16A0864. ALI v. THE STATE.

MCMILLIAN, Judge.

Abdur-Raheem Haneef Ali appeals the trial court’s denial of his motion for

new trial after a jury convicted him of two counts of armed robbery.1 In his sole

enumeration of error on appeal, Ali argues that he received ineffective assistance of

counsel because his trial attorney failed to thoroughly cross-examine a State’s witness

regarding his plea to lesser charges in connection with the crimes in this case. We

affirm for the reasons set forth below.

The evidence at trial showed that on the afternoon of December 18, 2012, Ali

was a passenger in a car with four to five other people, when some of the occupants

1 Ali was also charged with one count of robbery, but the jury acquitted him of that charge. of the car engaged in an altercation with three skateboarders after they asked to

borrow a cell phone from the skateboarders. Later that afternoon, the skateboarders

saw the car again at a friend’s apartment building. One of the passengers in the car

stepped out of the car with a gun, walked straight toward one of the skateboarders,

and then turned to the other two skateboarders and demanded their cell phones. After

taking the cell phones, the man and his companions fled in their car. The

skateboarders got the car’s tag number and reported the incident to police. Ali later

admitted to police that he had served as the lookout for this robbery and admitted

being in the car with the others when the robbery was planned.

The next day, another victim was standing outside his workplace when two

men came up and asked to borrow his cell phone. As he handed his phone over, one

of the men snatched his phone and ran off. The victim ran after the man who snatched

his phone, and after the men got into a car, he chased the car. The victim’s co-worker

wrote down the car’s license plate number, which was later relayed to police.

The description of the vehicle and the tag number given by the victim and his

co-worker matched the tag number and description of the car involved in the robbery

of the skateboarders. Police later located the owner of the car, Harra Oumer, who

testified at trial that Ali had been in the car when he and the other occupants of the

2 car discussed finding someone to rob on December 18, 2012. He said that Ali had

also been present during the altercation and later robbery of the skateboarders that

day. Oumer further testified that Ali, three other people, and he had gone to the mall

where the victim worked on December 19, 2012, to look for someone to rob. He said

that Ali and another man got out of the car, while he and two others waited in the car.

A short time later, Ali and the other man ran and jumped in the car, and when Ali got

in the car, he had a cell phone in his hand, which he kept.2

Ali argues on appeal that he received ineffective assistance of counsel because

his trial attorney failed to cross-examine Oumer regarding the minimum sentence he

avoided when he pled guilty to reduced charges. To establish his claim of ineffective

assistance of counsel, Ali must demonstrate that his trial counsel’s performance “was

deficient and that the deficient performance prejudiced him to the point that a

reasonable probability exists that, but for counsel’s errors, the outcome of the trial

would have been different.” (Citation omitted.) Ford v. State, 298 Ga. 560, 566 (8)

(783 SE2d 906) (2016). If the defendant fails to prove either of these factors, this

Court is not required to examine the other. See Green v. State, 291 Ga. 579, 580 (2)

2 Ali does not dispute that the evidence at trial was sufficient to support his convictions.

3 (731 SE2d 359) (2012). Moreover, “[a] strong presumption exists that counsel’s

conduct falls within the broad range of professional conduct.” (Citation omitted.) Id.

Moreover, “[t]rial tactics and strategy, no matter how mistaken in hindsight, are

almost never adequate grounds for finding trial counsel ineffective unless they are so

patently unreasonable that no competent attorney would have chosen them.” (Citation

and punctuation omitted.) Silvey v. State, 335 Ga. App. 383, 397 (3) (b) (iii) (780

SE2d 708) (2015). And “decisions about what questions to ask on cross-examination

are quintessential trial strategy and will rarely constitute ineffective assistance of

counsel. In particular, whether to impeach prosecution witnesses and how to do so are

tactical decisions.” (Citation and punctuation omitted.) Edwards v. State, 299 Ga. 20,

24 (2) (785 SE2d 869) (2016).

The evidence at trial showed that Oumer pled guilty to three counts of robbery

in connection with the two robberies in this case, for which he received a sentence of

five years confinement, followed by five years probation. Ali’s trial counsel did not

cross-examine Oumer regarding this plea at trial. At the hearing on Ali’s motion for

new trial, Ali’s trial counsel stated that he did not know that he could have impeached

Oumer on the mandatory minimum sentence for armed robbery he avoided by

entering a guilty plea to three counts of the lesser included offense of robbery. See

4 OCGA § 17-10-6.1 (b) (1) (imposing “a mandatory minimum term of ten years” for

armed robbery, no portion of which “shall be suspended, stayed, probated, deferred,

or withheld by the sentencing court”). He stated that if that were true and if he

thought that Oumer had been given some promise by the State in exchange for his

testimony, he would have “brought that up.”

Pretermitting whether counsel’s performance was deficient, we find that Ali

has failed to show that but for counsel’s errors, a reasonable probability exists that the

outcome of the trial would have been different if his counsel had questioned Oumer

about his sentence. Oumer testified at trial that he had been given no promises in

exchange for talking to police, and trial counsel acknowledged that the evidence

showed there had been no deals with Oumer in exchange for his testimony. And Ali

admitted acting as a lookout for the robbery and being in the car when the robbery

was planned. Moreover, Ali’s trial counsel stated that Oumer’s testimony was, in fact,

helpful because he stated that another of the men involved in the crime was the

ringleader, which tallied with Ali’s two-prong defense that (1) Ali did not know the

crime was going to take place until it started happening and (2) this other man forced

Ali to go along with the crime once it began.

5 Based on this evidence, we find that Ali has failed to carry his burden to show

that he was prejudiced by his trial counsel’s failure to impeach Oumer regarding the

mandatory minimum sentence he avoided, and thus his claim of ineffective assistance

of counsel fails. See Starling v. State, 299 Ga. 263, 265 (2) (787 SE2d 705) (2016)

(even assuming arguendo trial counsel’s performance was deficient, claim of

ineffective assistance of counsel fails where defendant failed to establish any

resulting prejudice); Wilhite v. State, 337 Ga. App. 324, 327 (1) (c) (787 SE2d 293)

(2016) (same).

Judgment affirmed. Miller, P. J., and McFadden, J., concur.