Cedric Wickerson v. State

• Court: Court of Appeals of Georgia
• Decided: May 22, 2013
• Docket: A13A0145
• 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 22, 2013

In the Court of Appeals of Georgia A13A0145. WICKERSON v. THE STATE.

BARNES, Presiding Judge.

Based upon allegations that he and two accomplices robbed four victims at

gunpoint in the course of one evening in DeKalb County, Cedric Wickerson was

indicted, tried, and convicted of multiple counts of armed robbery and aggravated

assault. The trial court denied his motion for new trial. On appeal, Wickerson

contends that there was insufficient evidence to prove that he was involved in the

robbery of the second and third victims or to prove that venue for the crimes was

proper in DeKalb County. He further contends that his trial counsel rendered

ineffective assistance. For the reasons discussed below, the evidence was sufficient to support the verdicts

and Wickerson failed to demonstrate that his trial counsel was ineffective. However,

the trial court erred in failing to merge one of Wickerson’s aggravated assault

convictions into one of his armed robbery convictions for sentencing purposes.

Accordingly, we affirm in part, vacate in part, and remand for resentencing.1

Following a criminal conviction, we view the evidence in the light most

favorable to the jury’s verdict. See Vaughn v. State, 301 Ga. App. 391 (687 SE2d

651) (2009). So viewed, the evidence showed that on the night of December 1, 2008,

within the span of approximately twenty minutes, four victims were robbed at

gunpoint within a three mile radius of one another in DeKalb County. All of the

robberies occurred in or near apartment complexes.

The first victim was walking into the Colony Apartments when a gold Cavalier

with a dent on the side and a cracked tail light stopped near him. Two men jumped

out while a woman remained in the car. One of the male robbers pointed a .357

caliber revolver at the victim and told him to “give it up.” As the victim was emptying

his pockets, the robber struck the victim in the jaw with the gun, causing him to

stumble to the ground and drop his cell phone, his driver’s license, and all of his cash.

1 The State’s motion to dismiss the appeal is hereby denied.

2 The second male robber picked up the items that had been dropped. The victim got

up from the ground, pushed one of the male robbers, and took off running. He ran to

a friend’s house, and his friend’s mother called the police when she saw the victim

at the door with blood on him.

That same night, a plumber and his assistant (the second and third victims)

were trying to repair a broken water main at the Windchase Apartments. The plumber

saw two men slowly approach the back of his parked utility truck. The two men then

walked around the truck, and one of them pointed a handgun at the back of the

plumber’s head, said that it was a robbery, and made the plumber and his assistant

turn around. The handgun held by the robber appeared to be a .357 caliber revolver.

While the first robber held the plumber at gunpoint, the second robber approached the

plumber’s assistant and began striking him. When the plumber attempted to stop the

second robber from hitting his assistant, the first robber struck the plumber twice in

the head with the revolver, causing him to bleed heavily and ultimately requiring

multiple stitches on the back right and left sides of his head. At the first robber’s

command, the plumber got down on the ground, after which the second robber began

to kick him in the side. The robbers took the plumber’s wallet and tool bag and his

assistant’s Blackberry cell phone. The robbers eventually walked away, and the

3 plumber’s assistant went to a nearby apartment and had the tenant call the police

while the plumber lay on the ground.

A few minutes after the robbery of the plumber and his assistant, a fourth

victim was walking home to her apartment which was near the Windchase

Apartments when she saw a gold Cavalier exit from that complex. She heard a car

door close and then was approached by a man who grabbed her, pushed her against

a fence, pointed a .357 caliber revolver in her face, and told her to hand over her

purse and other belongings. The Cavalier backed up to where she and the robber

holding her at gunpoint were located, and the fourth victim saw that there was a

woman in the driver’s seat and a man in the front passenger seat. After the robber

who was holding her at gunpoint took her purse and camera, he got into the rear seat

of the Cavalier, which then drove off. The fourth victim was able to see the license

tag number as the Cavalier drove away, and she called 911 on her cell phone, reported

what had happened, and provided a tag number to the dispatcher.

The three robberies occurred at approximately 9:30, 9:40, and 9:50 p.m.

Shortly after 10:00 p.m., a be-on-the-lookout (“BOLO”) was issued for the gold

Cavalier with the specified license tag number and for the suspects seen in the car,

identified as two men and a woman. An officer with the City of Pine Lake Police

4 Department was on patrol near where the robberies had occurred. After hearing the

BOLO, the officer began looking for the Cavalier and located it within minutes in an

apartment complex that was about a quarter of a mile away from the Windchase

Apartments. The officer observed the Cavalier backing into a parking space there, and

he saw that it was occupied by two men and a woman. The woman was driving, and

one man was in the front passenger seat while the other man was in the backseat. The

license tag number on the gold Cavalier closely matched the number given by the

fourth victim,2 and the car had a dent on the side and a cracked tail light as described

by the first victim.

The officer stopped his patrol car, got out, and approached the Cavalier. The

woman stayed in the car, but the two men got out and began walking away. The

officer ordered the men to stop, but they fled into a nearby apartment unit, where they

turned off the lights, shut the blinds, and locked themselves inside. At that point, the

officer radioed for backup and arrested the woman who had stayed in the car.

A search warrant was obtained for the apartment. Upon executing the search

warrant, officers located the two males inside the apartment and arrested them. No

2 The fourth victim identified the tag number on the Cavalier as “AEW7333,” and the tag number on the Cavalier seen by the patrol officer was “AEM7333.”

5 one else was inside the apartment. During the search, officers recovered from inside

the apartment the driver’s license of the first victim, which had been cut into pieces;

the tool bag of the second victim (the plumber), which had blood on it; and the

camera of the fourth victim. They also recovered a .357 caliber revolver hidden in the

toilet tank in the master bathroom, and bloody bullets under a mattress. During the

subsequent execution of a search warrant for the gold Cavalier, officers recovered a

Blackberry cell phone matching the description of the one stolen from the third victim

(the plumber’s assistant).

The woman driver of the Cavalier was identified as Whitney McGlasker, and

the two men who had barricaded themselves inside the apartment were identified as

Derrick Greene and Cedric Wickerson. The Cavalier was registered in the name of

Wickerson’s mother. The registered tenant of the apartment where Greene and

Wickerson had barricaded themselves was Greene’s girlfriend.

McGlasker, Greene, and Wickerson were indicted for multiple offenses arising

out of the robberies. McGlasker was tried and convicted of three counts of armed

robbery and four counts of aggravated assault. See McGlasker v. State, __ Ga. App.

__ (2013 WL 1490756, Case No. A12A2079, decided April 12, 2013). Greene pled

6 guilty to multiple offenses relating to the robberies. Wickerson was tried separately

on multiple counts of armed robbery and aggravated assault.3

At Wickerson’s trial, the State presented testimony and exhibits pertaining to

pre-trial photographic lineups that had been shown to the first, second, and fourth

victims by a police detective.4 The first victim had identified Greene and Wickerson

in pre-trial photographic lineups as the two men who had robbed him, but he had been

unable to identify the woman involved in the robbery. In addition to his testimony

about the photographic lineups, the first victim positively identified Wickerson in the

courtroom as the robber who had held him at gunpoint and struck him in the face with

the revolver.

The second victim, the plumber, had identified Greene in a pre-trial

photographic lineup as one of the men who had robbed him but had been unable to

identify the other male robber. The plumber testified that he had been focused on

Greene, the robber who had held the revolver to his head and struck him with it, and

thus was unsure of the identity of the other man involved in the robbery.

3 The State requested and obtained entry of a nolle prosequi on a separate count in the indictment for possession of a firearm by a convicted felon. 4 The third victim, the plumber’s assistant, did not testify at trial.

7 The fourth victim had identified McGlasker, Greene, and Wickerson in pre-trial

photographic lineups as the individuals who had robbed her. In addition to her

testimony about the photographic lineups, the fourth victim positively identified

Wickerson in the courtroom as the robber who had jumped out of the Cavalier, held

her at gunpoint, and taken her purse and camera.

The State also called several law enforcement officers as witnesses.

Specifically, the State presented the testimony of the Pine Lake patrol officer who had

located Wickerson and the other suspects after the robberies; the police investigators

involved in the search of the apartment where Wickerson had barricaded himself and

in the search of the Cavalier; and the police detective who had overseen the

investigation of the robberies and had shown the photographic lineups to the victims.

Wickerson chose to testify and denied any involvement in the robberies,

although he admitted that he had given inconsistent statements to the police about

that night. He also admitted that had been with Greene around 8:30 p.m. and later at

10:00 p.m. on the night of the robberies, and that he had barricaded himself in the

apartment with Greene because the police were outside. Wickerson, however, denied

that he had been with Greene between 8:30 p.m. and 10:00 p.m. and called defense

witnesses in an effort to show that he had been watching a football game at a friend’s

8 apartment during that time period. But those witnesses conceded that Wickerson had

not stayed to watch the entire game and had left around halftime.

After hearing all of the testimony, the jury found Wickerson guilty of four

counts of armed robbery and six counts of aggravated assault.5 Wickerson filed a

motion for new trial and raised claims of ineffective assistance of counsel. After

conducting an evidentiary hearing, the trial court denied the motion, resulting in this

appeal.

1. Wickerson challenges the sufficiency of the evidence to convict him of

armed robbery under counts 2 and 3 of the indictment.6 Count 2 of the indictment

charged him with the armed robbery of the plumber, and count 3 charged him with

5 The trial court granted Wickerson’s motion for a directed verdict on one of the counts of aggravated assault. 6 Wickerson asserts that there was insufficient evidence to convict him of aggravated assault under counts 7 and 9 of the indictment, but his assertion is moot because the trial court merged those counts into other counts for purposes of sentencing. See Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005). Additionally, Wickerson asserts that there was insufficient evidence to convict him of aggravated assault under count 8 of the indictment, but that assertion also is moot because we conclude supra in Division 3 that his aggravated assault conviction under count 8 should have been merged into his armed robbery conviction under count 2. See Long v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010).

9 the armed robbery of the plumber’s assistant. Wickerson emphasizes that the plumber

was unable to identify him as one of the perpetrators and that the plumber’s assistant

never testified at trial. Consequently, Wickerson contends that his convictions on

counts 2 and 3 were contrary to the weight of the evidence and must be reversed. We

disagree.

When we evaluate the sufficiency of the evidence under the standard of

Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979),

“the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” (Emphasis in original.) In

answering this question, “[w]e neither weigh the evidence nor assess the credibility

of witnesses.” (Citations omitted.) Vaughn, 301 Ga. App. at 391. Rather, “as long as

there is some competent evidence, even though contradicted, to support each fact

necessary to make out the State’s case, we must uphold the jury’s verdict.”

(Punctuation and footnote omitted.) Skinner v. State, 318 Ga. App. 217, 221 (3) (733

SE2d 506) (2012).

OCGA § 16-8-41(a) provides that “[a] person commits the offense of armed

robbery when, with intent to commit theft, he or she takes property of another from

10 the person or the immediate presence of another by use of an offensive weapon[.]”

In determining whether there was sufficient evidence that the armed robberies at issue

were committed by Wickerson, we are mindful that

[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. A person’s involvement in the commission of a crime may be inferred from that person’s presence, companionship, and conduct before, during and after the crime.

(Citations and punctuation omitted.) Sims v. State, 306 Ga. App. 68, 70 (1) (701 SE2d

534) (2010). See OCGA § 16-2-20 (a), (b).

Applying these principles, we conclude that the evidence previously discussed

was sufficient to authorize a rational jury to find beyond a reasonable doubt that

Wickerson, either directly or as a party to the crime, participated in the armed

robberies of the plumber and his assistant. Jackson, 443 U. S. at 319 (III) (b).

Although there was no direct testimony from the plumber identifying Wickerson as

one of the two men involved in those crimes, “[c]ircumstantial evidence of identity

may be sufficient to enable a rational trier of fact to find a defendant guilty beyond

11 a reasonable doubt.” Onumah v. State, 313 Ga. App. 269, 272 (3) (721 SE2d 115)

(2011). See Mays v. State, 198 Ga. App. 402, 403-404 (3) (401 SE2d 597) (1991).

Furthermore, even though the plumber’s assistant did not testify at trial, the testimony

of a victim is not required to sustain a conviction where there is other evidence that

the defendant committed the acts which establish the elements of the offense. See

Anthony v. State, 276 Ga. App. 107, 108 (1) (622 SE2d 450) (2005); Mullins v. State,

267 Ga. App. 393, 395 (1) (a) (599 SE2d 340) (2004).

Here, there was sufficient “other evidence” circumstantially connecting

Wickerson to the robberies of the plumber and his assistant to sustain his convictions.

The plumber identified Greene as one of the two robbers, and the first victim

identified Wickerson as having committed an armed robbery with Greene ten minutes

before the robbery of the plumber and his assistant, and the fourth victim identified

Wickerson as having committed an armed robbery with Green ten minutes after the

robbery of the plumber and his assistant. Additionally, the Pine Lake patrol officer

saw Wickerson and Greene together shortly after the robberies when they exited from

the gold Cavalier, which was registered in the name of Wickerson’s mother and from

which a Blackberry cell phone matching the description of the one stolen from the

plumber’s assistant was later recovered. The patrol officer further observed

12 Wickerson and Greene flee into an apartment unit where the tool bag of the plumber

with his apparent blood on it was later recovered, along with a .357 caliber revolver

matching the handgun described by the plumber as being used in the robbery.

This combined circumstantial evidence was sufficient to permit a jury to infer

that Wickerson was one of the two men involved in the armed robberies of the

plumber and his assistant. While Wickerson denied any involvement in those offenses

and attempted to present an alibi defense, the jury “was entitled to disbelieve [his]

version of the facts.” (Citation and punctuation omitted.) Herrera v. State, 306 Ga.

App. 432, 433 (1) (702 SE2d 731) (2010). Accordingly, we conclude that there was

sufficient evidence to support the verdicts for armed robbery.

2. Wickerson also argues that the State failed to prove beyond a reasonable

doubt through competent evidence that venue for the crimes committed against the

first, second, and third victims was proper in DeKalb County.7 Again, we disagree.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation

7 The fourth victim testified that the crimes committed against her occurred in DeKalb County, and Wickerson does not challenge the State’s proof of venue as to those specific crimes.

13 in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.

(Citation and punctuation omitted.) McGlasker, __ Ga. App. at __ (1).

The first victim testified as to the location where he was robbed, and the second

victim (the plumber) testified as to the location where he and the third victim (his

assistant) were robbed, but they did not specify the county where the crimes occurred.

The lead police detective, however, pointed out on a map the locations of the crimes

as had been identified by the victims and testified that the map was of an area of

DeKalb County. “This was sufficient evidence concerning the location of the acts to

establish that the crimes occurred in DeKalb County.” McGlasker, __ Ga. App. at __

(1) (venue established through police detective who “testified that the three robberies

took place at apartments located within a three-mile area which he referenced from

a map showing the area,” and “further testified that the area was within DeKalb

County”). See Armstrong v. State, 286 Ga. 420, 421 (2) (688 SE2d 629) (2010)

(“Proof of venue is sufficient where the State has submitted a map of the crime scene

area into evidence and presented testimony that the crime occurred on a street located

in the county in which the defendant is being prosecuted.”).

14 In reaching this conclusion, we reject Wickerson’s assertion that the detective’s

testimony about the locations of the robberies on the map posed a hearsay problem

because his information about where the robberies occurred came from his interviews

of the victims. The victims testified at trial as to the locations of the robberies, and

the detective then took the stand and pointed out from his personal knowledge of the

layout of the county where those locations were on a map of DeKalb County. There

simply was no hearsay problem with the detective’s testimony.

3. Wickerson was convicted and sentenced for the armed robbery of the

plumber (count 2) and for the aggravated assault of the plumber for striking him in

the head with a handgun (count 8). We are constrained to hold that the trial court

erred in failing to merge count 8 into count 2 for sentencing purposes for the same

reasons explained in our recent opinion in McGlasker, __ Ga. App. at __ (2). In that

case, this Court held that McGlasker, the woman accomplice who was separately tried

and convicted as a party to the armed robbery and aggravated assault of the plumber,

should not have been sentenced for both the robbery and the assault. See id. This

Court reasoned that the aggravated assault was a lesser included offense of the armed

robbery and that the assault conviction therefore should have been merged into the

robbery conviction for sentencing purposes. See id.

15 Based on the reasoning of McGlasker, we must conclude that the aggravated

assault of the plumber was a lesser included offense of the armed robbery of the

plumber and that the trial court erred by not merging the assault into the robbery.

Wickerson’s conviction and sentence for aggravated assault under count 8 therefore

must be vacated, and the case must be remanded to the trial court for resentencing.

See generally Sears v. State, 292 Ga. 64, 73-74 (6) (734 SE2d 345) (2012). This

disposition is required, even though Wickerson did not enumerate the merger issue

as error on appeal. See Washington v. State, 310 Ga. App. 775, 781-782 (7), n. 32

(714 SE2d 364) (2011).

4. Wickerson further argues that his trial counsel was ineffective in several

respects. We are unpersuaded.

To succeed on a claim of ineffective assistance of counsel under the test set

forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d

674) (1984), “[Wickerson] must prove both that his trial counsel’s performance was

deficient and that there is a reasonable probability that the trial result would have

been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770,

771 (2) (642 SE2d 827) (2007). If Wickerson fails to establish one of the prongs of

the Strickland test, he cannot succeed on his claim of ineffective assistance, and we

16 need not examine the other prong. Id. at 771-772 (2). With this framework in mind,

we turn to the specific allegations of ineffective assistance raised by Wickerson.

(a) Wickerson first contends that his trial counsel was ineffective for failing to

subpoena for trial the police officer who took the fourth victim’s statement after she

was robbed. According to Wickerson, the fourth victim’s testimony at trial was

inconsistent with her statement to the police officer because she testified at trial that

the robber who held her at gunpoint pushed her against a fence, but she allegedly told

the officer that the robber pulled her to the ground. Based upon this inconsistency,

Wickerson maintains that if the officer had testified about the fourth victim’s prior

statement, it would have given “rise to doubt about the ability of the [victim] to

recollect exactly what happened during the incident in question.”

Pretermitting whether his trial counsel was deficient for failing to subpoena the

police officer, we conclude that Wickerson cannot succeed on his ineffectiveness

claim because he cannot show prejudice. Wickerson did not call the police officer

who took the fourth victim’s statement to testify at the motion for new trial hearing,

and “[w]hen a defendant bases his ineffective assistance of counsel claim on

counsel’s decision not to call a particular witness, he must introduce either testimony

from the uncalled witness or a legally recognized substitute for his testimony.”

17 (Citation and punctuation omitted.) Cartwright v. State, 291 Ga. 498, 500 (2) (b) (731

SE2d 353) (2012). Moreover, the inconsistency alleged by Wickerson – the fourth

victim being pushed against a fence versus being pulled to the ground by the robber

– was simply not a material one to the case. Under these circumstances, Wickerson

cannot show that there is a reasonable probability that if the police officer had

testified about the fourth victim’s prior statement, the outcome of the trial would have

been different. 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).

(b) Wickerson next contends that his trial counsel was ineffective for failing

to seek a curative instruction after the trial court struck the testimony of McGlasker,

the woman involved in the robberies, who testified that Wickerson was her boyfriend

and that his mother had a gold Cavalier, but then refused to testify any further.

Wickerson’s claim is without merit. The record reflects that the trial court sua sponte

gave a curative instruction after striking McGlasker’s testimony. Hence, Wickerson

18 clearly cannot establish that his trial counsel’s failure to seek a curative instruction

prejudiced him in any manner.

(c) Wickerson also contends that his trial counsel was ineffective for failing to

object when the first victim testified that he had been scared to come to court and

testify because he had been held at gunpoint during the robbery, “didn’t want to get

involved,” and “didn’t want to put [him]self in danger” because “you never know

what’s going to happen when you come to court.” But “there is a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” (Punctuation and footnote omitted). Tyner v. State, 313 Ga. App. 557,

565 (6) (c) (722 SE2d 177) (2012). Moreover, “[t]he decision of whether to interpose

certain objections is a matter of trial strategy and tactics.” (Citation, punctuation, and

footnote omitted.) Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d 734)

(2009). And “[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.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732

SE2d 810) (2012).

19 Significantly, Wickerson failed to question his trial counsel at the motion for

new trial hearing as to why he did not object to the first victim’s testimony. “Under

these circumstances, “any decision not to object must be presumed to be a strategic

one, . . . [and] the only remaining question under the first prong of Strickland is

whether that decision was so patently unreasonable that no competent attorney would

have decided to forego making the objection.” (Citations and punctuation omitted.)

Flemister, 317 Ga. App. at 757 (4) (b).

“It is entirely reasonable for an attorney to make the strategic decision not to

object at every opportunity.” Flemister, 317 Ga. App. at 757 (4) (b). A competent

attorney could have made the strategic decision to forego objecting to the first

victim’s brief, generalized testimony about being scared to testify so as not to draw

unnecessary attention to it. See, e.g., Bogan v. State, 255 Ga. App. 413, 415-416 (3)

(b) (565 SE2d 588) (2002) (tactical decision not to object did not constitute deficient

performance where counsel “made a tactical decision not to object or ask for a

curative instruction . . . because he did not want to draw unnecessary attention to the

issue.”). Consequently, Wickerson cannot succeed on his ineffective assistance claim.

20 (d) Lastly, Wickerson contends that his trial counsel was ineffective for failing

to object when the prosecutor allegedly argued during closing that the third victim,

the plumber’s assistant, did not come to trial because he was scared.

But the record shows that closing arguments were not transcribed. “Because closing

arguments were not transcribed, we cannot review this enumeration.” Jackson v.

State, 256 Ga. App. 829, 831-832 (5) (570 SE2d 40) (2002). See Carswell v. State,

251 Ga. App. 733, 736 (3) (555 SE2d 124) (2001).

Judgment affirmed in part, vacated in part, and case remanded for

resentencing. Miller and Ray, JJ., concur.