Cannon v. State

806 S.E.2d 584, 302 Ga. 327
CourtSupreme Court of Georgia
DecidedOctober 16, 2017
DocketS17A1127
StatusPublished
Cited by9 cases

This text of 806 S.E.2d 584 (Cannon v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannon v. State, 806 S.E.2d 584, 302 Ga. 327 (Ga. 2017).

Opinion

BENHAM, Justice.

Appellant Juan Antonio Cannon stabbed the victim Terrence Wiggins in the neck because appellant believed Wiggins owed him money.1 The record shows the stabbing took place in a DeKalb County [328]*328restaurant. Anthony Daniels, who was closing up the restaurant, witnessed the stabbing. Shaquanna Fields, who was sitting inside the restaurant, was also alleged to have witnessed the events of that night. Immediately after being stabbed, the victim ran away from appellant and ran toward a police officer who was conducting a traffic stop across the street from the restaurant. According to the officer, Wiggins was bleeding, grasping at his shirt, and uttering the words “He stabbed me,” and “I’m dying,” before finally collapsing near the officer. The officer asked Wiggins who stabbed him, but Wiggins was running out of breath and was unable to answer. Wiggins eventually died from the injury he sustained to his neck. At trial, Daniels said he saw appellant hit the victim immediately before the victim ran out of the restaurant toward the police officer. Daniels also testified he saw appellant stab the victim.2 Fields, who was the other alleged eyewitness to the incident, could not be located and did not testify at trial.

Appellant represented himself for the first day and a half of trial. On the second day of trial, during his cross-examination of Daniels, who was the fourth witness for the State, appellant decided he wanted to be represented by the public defender who had been standing by to represent him if requested. Trial counsel took over the cross-examination of Daniels and continued to represent appellant for the remainder of the trial.

1. The evidence summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which the jury returned verdicts of guilty Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Appellant alleges counsel was constitutionally ineffective for his alleged failure to object to the testimony of the district attorney’s investigator and for his failure to request a jury instruction concerning appellant’s wearing prison attire during his trial. In order to prevail on a claim of ineffective assistance of counsel, appellant

must show 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, [329]*329the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewedby the Court. Wright v. State, 291 Ga. 869 (2) (734 SE2d 876) (2012). In this case, appellant has failed to meet his burden.

(a) The State proffered its investigator to testify about her unsuccessful efforts to locate Fields, who allegedly witnessed the crime along with Daniels. During her testimony, the investigator stated that Fields had no criminal record other than an arrest for the violation of a city ordinance. Defense counsel made an objection which the trial court sustained.3 In addition, the trial court instructed the jury to disregard the testimony in question. On appeal, appellant complains about this very same testimony on a theory of deficient performance. Since the record clearly shows defense counsel successfully objected to the testimony in question, counsel was not deficient. Appellant urges that the trial court’s curative instruction was not sufficient to clear the testimony from the jurors’ minds. Yet, in the absence of proof to the contrary, we presume that the jury followed the trial court’s instructions to disregard the testimony at issue. See Coleman v. State, 301 Ga. 721 (3) (804 SE2d 24) (2017). This allegation of error cannot be sustained.

(b) On the first day of trial, prior to jury selection and while appellant was representing himself pro se, the trial court inquired whether it was appellant’s choice to wear his orange prison attire, and appellant responded in the affirmative. At the beginning of the second day of trial, when appellant was still representing himself, the trial court again inquired as to whether he wanted to wear his prison attire, and appellant again responded in the affirmative. During [330]*330closing argument, the prosecutor argued that appellant wore his prison attire in order to garner the jury’s sympathy.

On appeal, appellant argues that defense counsel was deficient for failing to request an instruction informing the jury that no “negative or harmful considerations” could be made from appellant’s prison attire. At the motion for new trial hearing, however, appellate counsel did not ask trial counsel about why he did not request such an instruction upon taking over the trial from appellant. In the absence of such questions, we presume that counsel’s decision not to request such a jury instruction was strategic. See Cantu v. State, 304 Ga.App. 655 (2) (b) (697 SE2d 310) (2010). Astrategic decision about what jury instruction to request will be deemed deficient performance only if it is patently unreasonable. See id.; Jessie v. State, 294 Ga. 375 (2) (a) (754 SE2d 46) (2014). Given the situation trial counsel faced, in which appellant had made the voluntary decision to wear his jail clothes in court before counsel took over his representation, we cannot say counsel’s decision not to call further attention to the issue was patently unreasonable.

3. Appellant contends the trial court erred when it failed to give his requested charge on impeachment by prior conviction. This allegation of error concerns Daniels’s testimony On cross-examination, defense counsel was able to elicit an admission from Daniels that he had a 1988 felony drug conviction. The State objected to the admission of the evidence, in particular because the requirements of OCGA § 24-6-609 (b)4 had not been met; however, the trial court allowed the evidence to come in. The trial court declined appellant’s request for a charge on impeachment by prior conviction, but said trial counsel could reference the prior conviction in his closing argument.5 The trial court did, however, give the following instruction regarding impeachment as part of its charge on witness credibility: “To impeach a witness is to show that the witness is unworthy of belief. A witness maybe impeached by disproving the facts to which the witness testified.”

Since the requirements of OCGA § 24-6-609 (b) had not been met, Daniels’s 1988 conviction should not have been admitted. Thus, the fact that appellant was allowed to use the prior conviction evidence at all, inured to his benefit. The attendant failure of the trial court to give the charge requested was harmless error because it is [331]*331not highly probable that the error contributed to the verdict. See Reddick v. State, 301 Ga. 90 (1) (799 SE2d 754) (2017).

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Bluebook (online)
806 S.E.2d 584, 302 Ga. 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-state-ga-2017.