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/
October 4, 2013
In the Court of Appeals of Georgia A13A0943. CARTER v. THE STATE.
BARNES, Presiding Judge.
A jury convicted Candace Renee Carter of robbery, and she appeals,
contending that insufficient evidence corroborated the accomplice testimony
presented at trial. She also contends that her trial counsel was ineffective for several
reasons. For the reasons that follow, we affirm.
1. Carter contends that the testimony of her accomplice was uncorroborated
and thus insufficient to support her conviction. In Carter’s view, the evidence created
only a “grave suspicion” of guilt. We disagree.
An appellate court reviews the evidence in a criminal case in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012). See also Jackson v. Virginia,
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
So viewed, the evidence showed that Carter drove her friends Abrianne Suggs
and Sharee Harris to a Family Dollar store one evening. Carter waited in the car while
Suggs and Harris went inside, where Suggs texted Carter to let her know how many
people were in the store. Harris then robbed the employees at gunpoint and got into
Carter’s car. Carter drove home, leaving Suggs inside the store. A few minutes after
Carter and Harris returned to Carter’s house, Suggs left the store and walked to a
nearby Waffle House. She called Carter, who picked her up in a different car and the
two women returned to Carter’s house. Harris gave some of the robbery money to
Carter and some to Suggs.
Based on information from a tipster, the lead detective found and downloaded
pictures of all three women from Facebook. The investigator reviewed a store video
of the robbery and tentatively identified Harris as the person with the gun. The two
store employees, who testified at Carter’s trial, then identified Harris as the
gunwoman from a photographic lineup, The detective tracked down Suggs and during
an interview in his car, Suggs first admitted being in the store when it was robbed and
then admitted having caught “a glimpse” of the robber’s face. When the detective
2 showed Suggs the photographic lineup, she acknowledged that she knew Harris and
that she had Harris’s phone number and directions to her house in her cell phone.
The detective asked Suggs what she was doing in the area of the robbery since
she did not live nearby, and Suggs said that she had been visiting Carter, who gave
her a ride to the store to buy some dog food and that Harris rode with them to the
store. Suggs said Carter left and then picked her up a few minutes later at a Waffle
House. She agreed to show the detective where Carter’s apartment was located and
then offered to call her to see if she would meet with him. The detective suggested
she tell Carter that police had interviewed her and see how Carter would react.
Suggs called Carter on her cell phone and the detective listened to the first part
of the call through the phone’s speaker. Suggs told Carter that the police knew
everything, but Carter did not believe her, stating that if the police knew everything,
Suggs would be on her way to jail because it had been a “plot” Suggs had set up.
Suggs took the phone off speaker but the detective still overheard Carter talk about
text messages related to the number of employees in the store and Harris leaving
fingerprints. Suggs eventually told Carter that she was making the call from a police
car, and when Carter did not believe her, the detective took the phone and told Carter
he would like to talk to her about an incident at the particular store. Carter told him
3 to come by her apartment and he drove the quarter-mile there and recorded their
conversation. Carter told the detective that she had given Suggs a ride to the store,
dropped her off, received a text message about the number of employees in the store,
returned to pick up Suggs in the same car, and no one else had been in the car with
them.
Harris was subsequently arrested when she admitted robbing the store during
the execution of a search warrant at the house where she lived with her parents. She
showed the detective the clothes she had been wearing, which matched the clothes
worn by the robber in the store video, and said she left the gun, which was a BB gun
belonging to one of Suggs’ friends, in Carter’s car. She admitted to her mother that
she had spent the money and implicated Suggs, but would not talk about Carter.
Carter agreed to a second interview at the police station, where the detective
advised her of her Miranda rights after telling her she was a suspect in the robbery.
This time, Carter admitted that Harris had also ridden to the store with her, that Harris
and Suggs went inside, that Harris came out alone and the two of them left, and that
she returned to pick up Suggs in a different car because the other vehicle was out of
gas.
4 Both Suggs and Carter changed their stories a number of times during the
course of the investigation. When questioned, Harris admitted that she had robbed the
store, and Suggs admitted to being inside as the lookout. Both Suggs and Harris
testified that Carter participated in the robbery as the driver and Harris testified that
Carter received some of the stolen money. Harris also testified that Carter had
recently asked her if she “would ever rob for her.” Carter admitted to driving her
friends to and from the store, but she denied knowing about the robbery.
All three women were indicted for armed robbery. Suggs and Harris entered
guilty pleas for the lesser included offense of robbery, and Carter proceeded with a
jury trial.
Carter contends that the evidence against her was insufficient because it
consisted solely of the uncorroborated testimony of Harris, an accomplice. Generally,
the testimony of a single witness is sufficient to establish a fact, but in felony cases
where the only witness is an accomplice, the accomplice’s testimony standing alone
is insufficient. Former OCGA § 24-4-8, repealed and reinstated as OCGA § 24-14-8
(2013). However, “corroborating circumstances may dispense with the necessity for
the testimony of a second witness.” Former OCGA § 24-4-8. The corroborating
evidence must be independent of the accomplice’s testimony and must connect the
5 defendant to the crime, but it need not be sufficient by itself to warrant a conviction.
Etchison v. State, 266 Ga. App. 528, 528-529 (1) (597 SE2d 583) (2004). The
testimony of an additional accomplice may constitute corroboration of the first
accomplice’s testimony, and whether that evidence sufficiently corroborated the first
accomplice’s testimony was an issue for the jury. Williams v. State, 280 Ga. 584, 586
(1) (630 SE2d 370) (2006).
Here, both co-defendants testified that Carter drove them to the store, waited
outside while they both went in, left Suggs behind and drove away with Harris, and
then returned to pick up Suggs in a different car a few minutes later. Suggs testified
that she texted Carter to tell her how many people were in the store, and Harris
testified that she gave some of the robbery money to Carter. Both testified that Carter
participated in the robbery in her capacity as the driver. Suggs’ testimony
corroborates that of Harris and vice versa. See Hillman v. State, 396 Ga. 310, 312-313
(1) (674 SE2d 370) (2009); Crowe v. State, 83 Ga. App. 325, 329 (63 SE2d 682)
(1951). Furthermore, the detective testified about the conversation he overheard
between Suggs and Carter regarding text messages about fingerprints and the number
of employees in the store. And while Carter denied participating in the robbery,
whether she did so was simply a question of fact for the jury to decide.
6 The credibility of the testimony of witnesses is for the jury, and all conflicts in the evidence are resolved in favor of the verdict. While there might be discrepancies as to many of the details of the crime, as to the core issue -- was the defendant a participant? -- there was no such conflict in the testimony of the accomplices so as to demand a finding for [Carter] or to require the grant of a new trial.
(Citations and punctuation omitted.) Crawford v. State, 210 Ga. App. 36, 39 (2) (435
SE2d 64) (1993). The corroborating evidence in this case was more than slight and
was sufficient to authorize the jury to find that Suggs’ testimony was corroborated.
2. Carter maintains that she received ineffective assistance of counsel in three
related errors. She contends that counsel should have objected to the investigating
officer’s testimony repeating the anonymous tipster’s statements, to the prosecutor’s
questioning that elicited testimony about Carter’s pre-arrest silence, and to the
prosecutor’s closing argument emphasizing Carter’s pre-arrest silence. To prevail on
a claim of ineffective assistance of counsel,
appellant must show that her attorney’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of her trial would have been different. In applying this test, we accept the trial court’s findings of fact and credibility determinations unless they are clearly erroneous, but we independently apply the proper legal principles to the facts.
7 (Citation omitted) Waits v. State, 282 Ga. 1, 5 (4) (644 SE2d 127) (2007). To
establish that the deficient performance prejudiced the defendant “requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland v. Washington, 466 U. S. 668, 687 (104 SCt
2052, 80 LE2d 674) (1984).
a. Carter complains that trial counsel failed to object to hearsay testimony from
the investigating officer when he repeated the anonymous tipster’s out-of-court
statements during his testimony. At the hearing on Carter’s motion for a new trial,
Carter’s trial counsel testified that he had no strategic reason for not objecting to the
testimony but simply missed the opportunity to make it. Under former OCGA §
24-3-2, “facts to explain conduct and ascertain motives, . . . shall be admitted in
evidence not as hearsay but as original evidence.”1 But “police conduct is not a
1 Carter was tried in 2012, when the former Evidence Code applied. As of January 1, 2013 the old code stood repealed and the new Evidence Code became applicable to trials, motions, and hearings conducted after that date. See Ga. Laws 2011, Act 52, § 101.We offer no opinion regarding the hearsay provisions in the new Code, which are found in Chapter 8 of Title 24.
8 relevant issue . . . where a confidential informant has provided information which
initiates an investigation.” (Citation and punctuation omitted.) Brown v. State, 274
Ga. 31, 37 (2) (549 SE2d 107) (2001).
[H]earsay testimony explaining an investigating officer’s conduct is rarely admissible because the officer’s reason for initiating or continuing an investigation is not generally a relevant inquiry at trial. In contrast, the motive and conduct of the witness who first links a suspect directly to the crime often are relevant.
Pruitt v. State, 274 Ga. 708, 711 (2) (b) (559 SE2d 470) (2002).
Carter asserts that trial counsel’s performance was deficient because he should
have objected to the anonymous caller’s statements to the investigating officer as
inadmissible hearsay in violation of the Sixth Amendment Confrontation Clause,
which subjected her to a trial “based on rumor, gossip[,] and speculation.” She claims
prejudice because this testimony was not cumulative of other admissible evidence.
The State concedes that the hearsay evidence about the anonymous tipster was
not necessary to explain the officer’s conduct and that trial counsel’s failure to object
to it “was likely deficient,” but argues that Carter was not prejudiced by the statement
because it merely established why and how the officer began investigating Harris and
Suggs. It points to direct evidence from both Harris and Suggs that Carter was
9 involved in the robbery and to Carter’s own admission that she was present when the
robbery occurred.
Carter responds that the anonymous tipster’s statement that Carter participated
in the robbery was the only evidence other than Harris’s testimony that implicated
her, and thus it is highly probable that the detective’s testimony contributed to the
verdict. But as discussed in Division 1, the jury would have been authorize to
conclude that Harris’s testimony was corroborated in several respects unrelated to the
tipster. Suggs testified that Carter drove her and Harris to the store, received text
messages suggestive of a crime, left with only Harris after the robbery, and retrieved
Suggs from a different location in a different car a few minutes later. The detective
also testified that Carter admitted these facts to him. If the detective had simply
testified that his investigation led him to question Suggs, Harris, and Carter, the
incriminating evidence he gathered from them would have been the same.
“Assuming that . . . an objection would have been sustained, in light of the
other testimony produced at trial, it is highly probable that the testimony that the
investigating officer [decided to question Harris and Suggs] in response to an
anonymous tip did not contribute to the jury’s verdict.” Felton v. State, 283 Ga. 242,
246 (2) (d) (657 SE2d 850) (2008).
10 b. Carter contends her trial counsel was ineffective for failing to object to
questions from the State which elicited testimony from Carter and the detective about
Carter’s pre-arrest silence. The following exchange took place between the State and
the detective:
Q: Did the defendant mention – well, she admitted to driving Abrianne to the Family Dollar, correct?
A: Correct.
Q: Did she mention anybody else in the car at that point?
A: No, because I specifically asked her who else was in the car with her. She said just me and Abrianne, never mentioned another person in the car.
Q: Did she ever change her story?
A: The next time I interviewed her, which was a few days down the road, her story did change about which car she took to the Family Dollar; also who was in the car with her, that also changed.
...
Q: Did you ask her why she had not mentioned Sharee Harris in your first conversation?
11 A: Yes, I did. She said because you never brought up her name, so I didn’t mention, I didn’t bring up her name.
Carter argues that the State also improperly questioned her about her pre-arrest
silence by asking her why she did not initially tell the detective that her son had been
in the car with her on the night of the robbery, with no objection from her trial
counsel. Carter testified on direct examination that she did not tell the detective
during the first interview that Harris and her son had been in the car with her the night
of the robbery because he had not asked her if they had been there; he only asked
about herself. When he asked her in the second interview to tell him about everyone
in the car, then she told him about Harris and her son.
During cross-examination, the State asked Carter if she had mentioned to the
detective that the prosecutor or Juror Number 11 was in the car, and when she said
no, the State asked,
Q: Why? Because the officer didn’t ask you about those people?
Q: So when somebody asks you who you were with, you’re only going to answer whoever they ask you?
12 A: Corrrect, considering the situation, yes.
Q: So the question who all was with you does not imply, well, maybe he’s asking everybody who was in the car? Did that occur to you?
A: No. Like I said, considering the situation, I just –
Q: So when he asked you who was in the car, you said me and Abrianne; right?
A: Yes.
Q: And we know now that Sharee was also in the car; right?
Q: You did not tell the officer that the first time?
Q: And you claim now that your son was in the car; correct?
A: Correct. He was.
Q: And you did not tell the officer that either; correct?
13 The State also questioned Carter about not telling the officer at first about receiving
a text message from Suggs about Harris leaving fingerprints at the scene, “just like
[she] didn’t think of mentioning that Sharee Harris was in the car” or mention that her
son was in the car.
After the defense rested, the State recalled the detective and played an audio
recording of Carter’s first interview, during which Carter said she dropped off Suggs
at the Waffle House and picked her from there in her sister’s Impala, never
mentioning the Family Dollar store until the second interview. Carter returned to the
witness stand for surrebuttal and explained that her stories were inconsistent because
she had not realized at first that the detective was asking her about the night of the
robbery. On cross, after questioning her about her confusion over which night the
detective was asking about, the State asked Carter,
Q: At what point during that [first] interview did you tell him Sharee [Harris] was in the car?
A: I didn’t.
Q: At what point in that interview did you tell him your son was in the car?
A: I didn’t, because I didn’t know what day it was.
14 Q: I seem to recall hearing on there [in the recording of the first interview] you making the statement, “I want to give you as much info as possible.” Do you remember making that statement?
A: I sure did.
Q: Is it fair to say you did nothing of the sort?
A: Of course, because I had no idea of what was going on.
Carter’s trial counsel testified at the motion for new trial hearing that he was
not pursuing a trial strategy by failing to object to these questions, but simply had not
recognized them as impermissible comments on Carter’s right to remain silent. Carter
claims that her trial counsel’s failure to object constituted ineffective assistance
because the prosecutor’s questions were aimed directly at the heart of her defense –
lack of knowledge – and that the detective’s testimony regarding her silence created
an inference that her failure to tell the officer that her son and Harris were in the car
was an admission of guilt. The State responds that Carter was “anything but silent,”
“willingly answered the investigator’s questions,” and simply gave “inconsistent
answers and conflicting versions of events.”
15 Former OCGA § 24-3-36 of the old Evidence Code provided that
“[a]cquiescence or silence, when the circumstances require an answer, a denial, or
other conduct, may amount to an admission.” 2 In Mallory v. State, 261 Ga. 625, 630
(5) (409 SE2d 839) (1991), overruled on other grounds sub nom. Chapel v. State, 270
Ga. 151, 155 (4) (510 SE2d 802) (1998), our Supreme Court held that “a comment
upon a defendant’s silence or failure to come forward . . . will not be allowed even
where the defendant has not received Miranda warnings and where he takes the stand
in his own defense.” In recent opinions, the Georgia Supreme Court noted that former
OCGA § 24-3-36 was repealed by the new Evidence Code, but the Court specifically
did not rule on Mallory’s continued viability under the new code because that issue
was not squarely before the Court. See Romer v. State, ___ Ga. ___ (745 SE2d 637,
641 (2), n. 4) (2013); Yancey v. State, 292 Ga. 812, 817 (2), n. 9 (740 SE2d 628)
(2013).
However, this case is not squarely governed by the principle in Mallory
prohibiting mention of a defendant’s silence or failure to come forward. Carter was
not silent and did not fail to come forward. She willingly talked to the detective when
2 Former OCGA § 24-3-36 was also repealed by legislation enacting the new Evidence Code. The new code redefines admissions in OCGA § 24-8-801 (d) (2).
16 he drove to her apartment, she voluntarily came to the police station and answered
further questions after being advised of her right to remain silent, and she never
invoked her right to remain silent. Thus, “the Mallory principle did not require the
exclusion of testimony about [Carter’s] failure” to mention during the first interview
that Harris was in the car or to mention during either interview that her son was in the
car. See Yancey, 292 Ga. at 817 (2) (permissible to ask defendant who voluntarily
came to police station and made statement why he would not draw a diagram of crime
scene upon request of investigating officers); Curry v. State, 291 Ga. 446, 451 (3)
(729 SE2d 370) (2012) (permissible to ask defendant who did not invoke right to
remain silent why he failed to respond to particular questions during interview);
McMichen v. State, 265 Ga. 598, 606 (11) (a) (458 SE2d 833) (1995) (questions about
why defendant did not mention self-defense claim during voluntary statement were
proper inquiries into the inconsistency between voluntary statements and testimony
at trial).
“[S]ince appellant spoke with police without ever invoking [her] right to
remain silent, the prosecutor’s line of questioning did not constitute impermissible
commentary on appellant’s right to remain silent.” Gilyard v. State, 288 Ga. 800, 802
(2) (708 SE2d 329) (2011). Accordingly, even a timely objection to the testimony
17 about which Carter complains would have been overruled, and trial counsel was not
ineffective for failing to make such an objection. As a matter of law, a failure to
interpose a meritless objection does not amount to unreasonable performance.
Bradley v. State, 292 Ga. 607, 614 (5) (740 SE2d 100) (2013).
c. Finally, Carter contends her trial counsel was ineffective for failing to object
when the State argued in closing that Carter’s explanation for not telling the detective
that Harris was in the car the night of the robbery because she was confused about the
dates and other omissions was not credible. “In any event, because evidence about the
failure to [disclose these facts to the detective] was [properly] admitted, it was not
improper for the prosecuting attorney to reference that evidence in closing.” Yancey,
292 Ga. at 818 (3). “[A] lawyer has wide latitude in closing argument to remark upon
the evidence that has been adduced at trial, and he may draw reasonable inferences
or deductions from the evidence.” Id. (Citations and punctuation omitted.) The State’s
argument was a fair commentary upon the evidence introduced at trial, and if Carter’s
trial counsel had objected, the trial court in its discretion could have overruled it.
There being no merit to such an objection, again, Carter’s trial counsel was not
ineffective for failing to make it. Bradley, 292 Ga. at 614 (5).
Judgment affirmed. Miller and Ray, JJ., concur.