Brandon Pugh v. State

• Court: Court of Appeals of Georgia
• Decided: July 15, 2013
• Docket: A13A0634
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/

July 15, 2013

In the Court of Appeals of Georgia A13A0634. PUGH v. THE STATE.

RAY, Judge.

Following a jury trial, Brandon Sanchez Pugh was convicted on three counts

of armed robbery (OCGA § 16-8-41) and two counts of a false statement to a law

enforcement officer (OCGA § 16-10-20). He appeals from the denial, in part, of his

motion for new trial, contending that he had ineffective assistance of counsel.1 For

the following reasons, we affirm.

Viewed in the light most favorable to the verdict,2 the evidence shows that

around 9:00 a.m. on August 18, 2008, Tracy Dukes, Betty Williams, and Areli Lynn

1 In ruling on the defendant’s motion for new trial, the trial court vacated the convictions and sentences for the two counts of giving a false statement based on the State’s failure to establish venue for those charges. 2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Sanders were working as tellers at a Wachovia Bank branch when two African-

American males wearing ski masks and gloves entered the bank, held them at

gunpoint, and robbed them of approximately $18,000. The masked men took money

from the tellers, which was placed into bags along with red dye packs. The men then

took the bags and fled the bank.

Immediately before the robbery, a bank customer, Tom Thompson, was on his

way into the bank to make a deposit when he noticed a white Cadillac Seville backed

into a parking space with both the driver and passenger doors partially open. After

completing his transaction at the bank, Thompson was walking back to his car when

he saw two men wearing ski masks jump out of the Cadillac and run into the bank.

Thompson immediately called 911 and provided the operator with the tag number of

the vehicle. A few minutes later, Thompson saw the two men run out of the bank, get

back into the Cadillac, and drive off.

As the perpetrators were driving off, another bank customer, Janet Hilgerson,

had just pulled into the bank parking lot. A bystander yelled at Hilgerson, telling her

that the bank had just been robbed and to “follow that car.” Hilgerson turned her

vehicle around and followed the white Cadillac Seville from the bank to a nearby

Efficiency Lodge hotel. After the Cadillac turned into the Efficiency Lodge parking

2 lot, Hilgerson turned her vehicle around, went back to the bank, and provided the

police officer who had responded to the scene with a partial tag number of the

Cadillac and the vehicle’s location.

The police went to the Efficiency Lodge and found the white Cadillac Seville

parked behind the hotel. Investigators later found red dye stains inside the vehicle,

as well as Pugh’s checkbook.

After determining that the vehicle was registered to Pugh, investigators located

Pugh later that day at Hartsfield Jackson International Airport, where he worked as

a tug operator. Before speaking with Pugh, the investigators were informed that the

Cadillac had been reported stolen. Pugh had gone to the East Point Police Department

around 11:00 a.m. that day, approximately two hours after the armed robbery, and

reported that his car had been stolen from a Texaco some 11 hours earlier, around

12:30 a.m.

The investigators interviewed Pugh at the Atlanta Police Department’s office

located within the airport. At the time of the interview, Pugh was accompanied by his

supervisor and a Delta security officer. The investigators told Pugh why they wanted

to speak with him and informed him that he was not under arrest. There is no

evidence that Pugh was restrained in any way, or that he ever requested an attorney

3 to be present or asked to stop the interview. During the interview, Pugh stated that he

was at home in bed at the time of the armed robbery and that he did not get out of bed

until his parents came to get him to take him to the East Point Police Department to

report that his car had been stolen.

One investigator testified that, before the interview, he thought that Pugh could

have been a victim of car theft and that someone had used his car during the armed

robbery, and that the investigator expected the interview to only last a few minutes.

However, when questioned about the theft of his vehicle, Pugh gave inconsistent

statements concerning the circumstances of the alleged theft, began showing signs of

extreme nervousness, materially changed his account of what happened, and failed

to give a logical reason or explanation as to why he did not immediately report the

theft of his vehicle.

Pugh had a black book bag with him at the interview, which he admitted to

having with him at the time of the theft. The investigators asked for and obtained

Pugh’s consent to examine its contents. The bag contained Pugh’s vehicle registration

and insurance cards (things that are typically kept in a vehicle), as well as gloves. The

investigators also observed red stains on his left hand consistent with stains that

would come from a red dye pack. Based on the foregoing, as well as the fact that

4 Pugh matched the physical description of one of the men involved in the armed

robbery, Pugh was placed under arrest.

During the subsequent investigation, the police interviewed Pugh’s neighbor,

Ricky Smith, who stated that, at about 10:30 a.m. on the morning of the armed

robbery, he observed Pugh being dropped off at his home by another man. Smith’s

statement, which he later confirmed through his testimony at trial, directly

contradicted Pugh’s account of his whereabouts on the morning of the armed robbery.

The police executed a search warrant for Pugh’s house and found a red stain in a

bathroom trash can. The police were also able to determine that Pugh had a financial

motive to commit the armed robbery, as Pugh was deeply in debt and had been sued

in various lawsuits, and his wages were being garnished at the maximum rate.

Following a jury trial, Pugh was convicted on all charges for which he was

indicted, but the trial court vacated his convictions for giving false statements to law

enforcement. The remaining convictions for armed robbery are at issue on appeal.

1. Pugh contends that trial counsel rendered ineffective assistance by failing

to impeach the testimony of Pugh’s neighbor, Ricky Smith, with a prior inconsistent

statement. We discern no error.

5 In considering the trial court’s ruling on a claim of ineffective assistance of

counsel, this Court accepts “the trial court’s factual findings and credibility

determinations unless clearly erroneous, but we independently apply the legal

principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga.

786, 787 (2) (716 SE2d 176) (2011).

The 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), 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

SE2d 819) (2001).

At trial, Smith testified that he observed a man drop Pugh off at his home at

about 10:30 a.m. on the morning of the armed robbery. This testimony was significant

because Pugh had told the investigators that he had been at home in bed all morning

and that he did not get up until 11:00 a.m. when his parents came to pick him up. On

cross-examination, Pugh’s trial counsel attempted to impeach Smith by presenting

him with an “affidavit” that was not notarized which he had allegedly signed, in

6 which Smith denied seeing Pugh that morning and denied telling the police that he

had seen him. Trial counsel asked Smith if he recalled meeting with an investigator

for the defense, Sherry Embry, and being presented with the document. Smith

testified that he had never met Embry, that he had never seen the document before,

and that he did not sign it. Smith further testified that the portion of the document

which stated that he had not seen Pugh that morning was not true. Embry was not

called as a witness. When trial counsel moved to admit the document into evidence

as a prior inconsistent statement, the trial court excluded the purported affidavit

because Smith denied making it and because the document was not properly

authenticated.

When Pugh’s mother was later called as a witness for the defense, she testified

that she went over to Smith’s house and asked him if he saw Pugh get out of a car on

the morning of the armed robbery. Pugh’s mother further testified that, based on

Smith’s response, she (not Embry) presented him with the prepared affidavit and that

Smith signed it in her presence. This was the same document that trial counsel had

sought to admit into evidence earlier. When trial counsel moved again to admit the

document into evidence, the jury was excused from the courtroom, and the trial court

had a discussion with counsel. During this discussion, the trial court found that the

7 circumstances under which counsel was attempting to introduce the document were

“extremely troubling and extremely irregular,” and the court stated that it was “very

disturbed” by trial counsel’s explanation that he had misunderstood who had

presented the document to Smith. The trial court lectured counsel about his lack of

preparation for trial, given the fact that the inconsistent statement appeared to be a

critical piece of information for the defense. Ultimately, the trial court excluded the

statement from evidence, finding that Smith had not been given the opportunity to

explain or deny the purported meeting with Pugh’s mother, and that it would be unfair

to the prosecution to allow the prior inconsistent statement to come in under these

circumstances.

At the hearing on the motion for new trial, Smith admitted that Pugh’s mother

had presented him with the document and that he had signed it. But Smith further

testified that the portion of the document which states that he had not seen Pugh that

morning was untrue. Smith testified that he had seen Pugh, but clarified that he only

saw him walking away from the man’s car and that he did not actually see him get out

of the vehicle. Thus, even had trial counsel been able to admit the statement into

evidence, Smith’s testimony concerning the statement would have still contradicted

Pugh’s alibi defense. At trial, Pugh, his mother, and his father each testified that they

8 had left together to go to the East Point Police Department before the time that Smith

contends he saw Pugh walking away from the man’s car.

Under these circumstances, we can not say that the exclusion of the

inconsistent statement affected the outcome of the trial. See Taylor v. State, 282 Ga.

693, 696-697 (2) (c) (653 SE2d 477) (2007) (defendant could not show prejudice

arising from failure to impeach witness with prior inconsistent statement, where there

was no reasonable probability that the difference between witness’s prior statement

and her in-court testimony would have affected the result of the trial).

Furthermore, given the other evidence of Pugh’s guilt, i.e. - the use of his car

in the armed robbery, his delay in reporting the alleged theft of his vehicle, his

inconsistent and conflicting accounts of the circumstances surrounding the alleged

theft of his vehicle, the stains found on his hand and in his home which were

consistent with the red dye packs from the bank robbery, his financial motive to

commit armed robbery, and the fact that he matched the physical description of one

of the perpetrators, Pugh cannot show a reasonable probability that the results of the

trial would have been different had the statement been admitted. Williams v. State,

312 Ga. App. 693, 695-696 (3) (719 SE2d 501) (2011).

9 Therefore, Pugh has failed to establish that he suffered prejudice as the result

of counsel’s failure to impeach Smith with his prior inconsistent statement. “Failure

to show prejudice from counsel’s allegedly deficient performance is fatal to an

ineffectiveness claim.” (Citation omitted.) Moore v. State, 288 Ga. 187, 190 (2) (702

SE2d 176) (2010).

2. Pugh also contends that trial counsel rendered ineffective assistance by

failing to file a motion to exclude the in-custody statements he made during his

interview with investigators. Specifically, Pugh contends that suppression of his

statements would have been warranted because he had not been advised of his

Miranda3 rights at the time of questioning, and that he had been questioned by the

investigators for approximately two and a half hours in a coercive environment which

would lead a reasonable person to conclude that he was not free to leave. We

disagree.

When claiming ineffectiveness for failure to file a motion to suppress, an

appellant must establish a strong showing that the damaging evidence would have

been suppressed had the motion been filed. Rivers v. State, 283 Ga. 1, 5 (3) (b) (655

SE2d 594) (2008).

3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

10 The issue of whether a person is in custody for Miranda purposes is a “mixed

question of law and fact, and the trial court’s determination will not be disturbed

unless it is clearly erroneous.” (Citation and punctuation omitted.) DiMauro v. State,

310 Ga. App. 526, 528 (1) (714 SE2d 105) (2011).

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable person in [Pugh’s] position would perceive his situation.

(Citations and punctuation omitted; emphasis supplied.) State v. Folsom, 285 Ga. 11,

12-13 (1) (673 SE2d 210) (2009). In other words, the proper inquiry focuses upon

“the objective circumstances attending the particular interrogation at issue, and not

upon the subjective views of either the person being interrogated or the interrogating

officer.” (Citation omitted.) Crawford v. State, 288 Ga. 425, 426 (2) (704 SE2d 772)

(2011).

In this case, the investigators interviewed Pugh at the Atlanta Police

Department’s office located within the airport. At the time of the interview, Pugh was

accompanied by his supervisor and another employee. Pugh was advised that he was

11 not under arrest. The officers were conducting a general investigation into the use of

Pugh’s vehicle in the armed robbery and the circumstances surrounding the theft of

his vehicle. At the start of the interview, the investigators did not consider Pugh a

suspect. Pugh was never told that he was not free to leave during the interview, nor

was there evidence that Pugh was restrained in any way. Under the totality of the

circumstances, we conclude that a reasonable person in Pugh’s circumstances would

not have concluded that he was in custody or otherwise deprived of his freedom. See

Mosely v. State, 269 Ga. 17, 20 (3) (495 SE2d 9) (1998) (defendant was not entitled

to be advised of Miranda rights where, at the time of questioning, officers were

conducting a general investigation into a crime, defendant was not a suspect, and

defendant was initially considered to be a victim). Furthermore, although the officers’

suspicions as to Pugh’s involvement in the armed robbery were aroused by Pugh’s

statements during the interview, the officers never communicated to Pugh that he was

under arrest or that he was not free to leave.

We have previously held that “a custodial situation does not arise even if an

officer believes he has probable cause to arrest a defendant, where the officer takes

no overt step to communicate that belief.” (Footnote omitted.) Tobias v. State, 319

Ga. App. 320, 324-325 (1) (735 SE2d 113) (2012). In Tobias, we found that a

12 defendant was not entitled to be advised of Miranda rights where she was not in

custody at the time of questioning, even though the interrogating officer had

determined that she would be arrested. Id. at 321-325 (1). Since Pugh was not in

custody at the time he made the statements, he was not entitled to Miranda warnings.

It is well settled that the “[f]ailure to pursue a meritless motion cannot be

evidence of ineffective assistance.” (Citation omitted.) Banks v. State, 244 Ga. App.

191, 192 (1) (c) (535 SE2d 22) (2000). Accordingly, this enumeration of error is

without merit.

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