Christopher Adams v. State

• Court: Court of Appeals of Georgia
• Decided: May 13, 2014
• Docket: A14A0677
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, 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/

May 13, 2014

In the Court of Appeals of Georgia A14A0677. ADAMS v. THE STATE.

MILLER, Judge.

Following a jury trial, Christopher Adams was convicted of one count of armed

robbery (OCGA § 16-8-41 (a)). Adams appeals from the denial of his motion for a

new trial, contending that: (1) the trial court erred by not allowing defense counsel

to cross examine one of the victim’s about a previous bad act, which denied the

defendant the opportunity to impeach the witness; (2) the trial court imposed a

vindictive sentence after exercising his right to jury trial; (3) his trial counsel was

ineffective; and (4) the verdict is contrary to law and the principles of justice and

equity. For the reasons that follow, we affirm.

On appeal, we construe the evidence favorably to the jury’s verdict. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find [Adams] guilty beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Williams v. State, 312 Ga. App. 22 (717 SE2d

532) (2011).

So viewed, the evidence shows that on or about November 4 and November 5,

2009, Adams bought a vinyl Halloween mask and a blue aluminum baseball bat at a

Wal-Mart. Thereafter, on the morning of November 5, Adams parked the vehicle he

was driving at an unmanned electrical substation off of Hicks Road in Cobb County,

Georgia. From there, Adams put on the Halloween mask and walked with the bat to

the CVS store at the corner of the East/West Connector and Hicks Road. Adams

walked inside the store, put the bat on his shoulder, and ordered the CVS employees

to give him all of the money out of the register. Adams then shook the bat and yelled

at the employees to hurry. One of the employees also saw something protruding out

of Adams’s sweat shirt that he believed to be a gun or other weapon. The employee

emptied the register and put approximately $135 in a white plastic CVS bag that he

then gave to Adams.

Adams then left the store, and the employee called 911. The employee told

dispatch that Adams was running through a field behind the CVS building. A

2 responding police officer received a detailed description of Adams, which he relayed

to other officers. Around this time, Officer Matthew Owen was driving on Hicks

Road toward the CVS when he passed a vehicle parked at the electrical substation.

Officer Owen thought the vehicle was suspicious and he made a U-turn to investigate.

At that time, Officer Owen saw Adams walking out of the field from the direction of

the CVS. Officer Owen observed that Adams matched the description of the CVS

robber and that he was carrying a white bag, a vinyl mask, and a blue baseball bat.

Officer Owen exited his patrol car, drew his weapon, and told Adams to drop his

weapons and lie on the ground. Adams dropped everything he was carrying and laid

on the ground. Officer Owen then radioed other officers that he had a possible

suspect.

After other officers arrived, Adams was handcuffed, and during a pat-down

search, police officers recovered a stun-gun in the pocket of Adams’s sweatshirt.

Officers also found the following items on or near Adams: a Halloween mask, a blue

baseball bat, receipts for the mask and bat, and a white plastic CVS bag containing

approximately $136. After being advised of his rights, Adams admitted that he robbed

the CVS.

3 At trial, Adams admitted that he committed the robbery, but submitted that he

was not armed. In particular, Adams testified that he never swung or moved the bat

off of his shoulder, and that the stun gun was not in his pocket while he was inside

the store.

1. Adams contends that the trial court erred in preventing him from impeaching

the CVS store employee who emptied the cash register and gave Adams the money.

Specifically, Adams wished to impeach the employee with evidence that the

employee’s employment with CVS ended because he committed theft. We disagree.

At the trial, the former employee stated that he began working at CVS because

his work in real estate had declined. During cross-examination, the former employee

testified that he left CVS because he wanted to return to real estate. When asked by

defense counsel whether the former employee left voluntarily, the former employee

stated that it was a mutual decision. Defense counsel then asked the former employee

whether he had been accused of any wrongdoing. The former employee asked the trial

court whether he was required to answer, and the State argued that the reason for the

employee’s departure was not relevant. The trial court then excused the jury, and

asked the former employee to answer defense counsel’s question. The former

employee stated that he had became disgruntled with his pay and, as a form of protest,

4 he would eat snacks without paying for them and that he would do this in front of the

store video camera. The former employee told management of his actions and the

reasons for his actions, and they mutually decided that it was best if the employee

resigned. The former employee stated that CVS “technically could have gotten [him]

for theft or something,” although no charges were ever filed against him. Defense

counsel argued that he should be allowed to introduce evidence of the former

employee’s theft because he could use the prior bad act to impeach the witness. The

judge permitted defense counsel to ask the employee if there were other reasons for

leaving CVS, but the trial court did not allow defense counsel to bring up any prior

bad acts.

[T]rial courts retain wide latitude to impose reasonable limits on cross-examination . . . . The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d

715) (2012).

Generally, a victim, such as the employee at issue, may not be impeached with

instances of specific misconduct or prior bad acts. Allen v. State, 275 Ga. 64, 68 (3)

(561 SE2d 397) (2002); see also Wise v. State, 321 Ga. App. 39, 44 (3) (740 SE2d

5 850) (2013). Adams argues that the trial court was required to allow him to cross-

examine the employee about his admitted theft under former OCGA § 24-9-84.1 (a)

(3).1 That section provided, however, that “[e]vidence that any witness . . . has been

convicted of a crime shall be admitted if it involved dishonesty or making a false

statement, regardless of the punishment that could be imposed for such offense.”

Adams did not submit proof that the employee was convicted of, much less charged

with, a crime for failing to pay for the snacks. See Woods v. State, 269 Ga. 60, 63 (4)

(495 SE2d 282) (1998) (a witness is successfully impeached with a prior conviction

by tendering into evidence certified copies of the witness’s prior convictions).

Consequently, the testimony regarding such specific bad acts was not admissible for

impeachment purposes. See Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696)

(1995) (proffered testimony not admissible because it related solely to a specific bad

act). Accordingly, the trial court did not abuse its discretion in limiting Adams from

cross-examining the former employee about prior bad acts.

1 Adams cites to former OCGA § 24-9-84 (a) (3), but it is clear from his argument that he is referring instead to former OCGA § 24-9-84.1 (a) (3). Additionally, Adams’s reliance upon the new Evidence Code is unavailing. This case was tried in 2011. As a result, Georgia’s new Evidence Code, effective January 1, 2013, does not apply to this case. See Slaughter v. State, 292 Ga. 573, 576 (2), n. 3 (740 SE2d 119) (2013).

6 2. Adams next contends that the trial court acted vindictively by giving him a

greater sentence after the jury found him guilty than he would have received if he had

accepted the State’s plea offer. Adams’s contention has no merit.

There is no evidence that the trial court acted in a vindictive manner in

sentencing Adams. Contrary to Adams’s suggestion otherwise,2 there is no

presumption of vindictiveness when a trial court imposes a greater penalty after trial

than it would have after a guilty plea. Townes, supra, 298 Ga. App. at 189. This Court

has long recognized that a trial court does not engage in unconstitutional

“vindictiveness” by imposing a harsher sentence following a jury trial than may have

been imposed if the defendant had accepted a plea bargain. Allen v. State, 193 Ga.

App. 670, 671-672 (388 SE2d 889) (1989). In imposing a harsher sentence following

trial, the trial court is “merely following through on the inevitable and permissible

threat which is implicit in any plea bargain situation–that rejection of the plea bargain

may diminish or destroy the very rationale for the imposition of a lenient sentence.”

(Citation and punctuation omitted.) Id. at 671.

2 To the extent Adams relies upon North Carolina v. Pearce, 395 U.S. 711 (89 SCt 2072, 23 LEd2d 656) (1969) for the proposition that a presumption of vindictiveness exists, that case applies only to resentencing after a conviction is set aside. See Townes v. State, 298 Ga. App. 185, 189 (679 SE2d 772) (2009).

7 3. Adams next contends that his trial counsel was ineffective for not insisting

on a ruling by the trial court on his objection to the verdict form regarding the

insertion of the word “or” between the first option to find him guilty of armed robbery

and the second option to find him guilty of robbery by intimidation. Adams also

asserts that trial counsel was ineffective for failing to renew his objection after the

jury charge. We disagree.

“To establish an ineffective assistance of counsel claim, the defendant must

show that counsel’s performance was deficient and the deficient performance

prejudiced the defense. There is a strong presumption that counsel’s conduct falls

within the range of sound trial strategy and reasonable professional judgment.”

(Citations omitted.) Bright v. State, 292 Ga. 273, 274 (2) (736 SE2d 380) (2013). In

reviewing a trial court’s ruling on an ineffective assistance claim, “we accept the trial

court’s factual findings and credibility determinations unless clearly erroneous, but

we independently apply the legal principles to the facts.” (Citations and punctuation

omitted.) Holloman v. State, 293 Ga. 151, 154 (4) (744 SE2d 59) (2013). “[D]ecisions

of when and how to raise objections are generally matters of trial strategy[.]”

(Footnote omitted.) Holmes v. State, 271 Ga. App. 122, 124 (3) (608 SE2d 726)

(2004).

8 Adams did not call his trial counsel to testify at the motion for new trial

hearing. Without trial counsel’s testimony, there is no evidence in the record as to

why counsel did not insist on a ruling on his objection or renew his objection after the

jury charge. See Sanders v. State, 283 Ga. 372, 374 (2) (a) (659 SE2d 376) (2008)

Therefore, Adams has failed to overcome the strong presumption that counsel’s

actions fell within the range of reasonable trial strategy. See Holmes, supra, 271 Ga.

App. at 124 (3).

Even if trial counsel was deficient in the manner alleged, Adams has failed to

establish prejudice. In its charge to the jury, the trial court read the single count of

armed robbery and provided the elements for armed robbery and the lesser included

offense of robbery by intimidation. The trial court further charged the jury that, based

on a review of the evidence, it could either find Adams not guilty of armed robbery,

guilty of armed robbery, or guilty of robbery by intimidation. Although the jury asked

for a recharge on armed robbery and robbery by intimidation, there is no evidence

that the jury was confused as to the possible verdicts it could reach. The verdict form

was not improper or misleading, and Adams has not shown that any ruling on an

objection to the verdict form would have been meritorious or would have led to a

different result. See Moore v. State, 319 Ga. App. 766, 775 (8) (c) (738 SE2d 348)

9 (2013) (where trial court properly instructed the jury on the separate counts of the

verdict form, the defendant failed to establish a reasonable likelihood of a different

outcome had trial counsel objected to verdict form listing the charge against the

defendant in between the charges against a co-defendant); Wilcox v. State, 297 Ga.

App. 201, 205, 207 (3) (677 SE2d 142) (2009) (no prejudice from trial counsel’s

failure to object to verdict form for failing to list theft by taking as a lesser included

offense of both hijacking a motor vehicle and armed robbery because qualified jurors

were presumed to follow trial court’s instructions that it was a lesser included offense

of both crimes). Accordingly, Adams’s ineffective assistance claim fails.

4. In his last enumeration, Adams contends that the verdict was contrary to the

law and the principles of justice for reasons stated in his prior enumerations. In light

of our resolution in Divisions 1 through 3, Adams contention on this ground is

without merit. Since he makes no other argument that the verdict was contrary to law

or not supported by the evidence, we affirm his conviction.

Judgment affirmed. Doyle, P. J., and Dillard, J., concur.