Darievq Javon Richardson v. State

• Court: Court of Appeals of Georgia
• Decided: October 23, 2024
• Docket: A24A0998
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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. https://www.gaappeals.us/rules

October 23, 2024

In the Court of Appeals of Georgia A24A0998. RICHARDSON v. THE STATE.

DOYLE, Presiding Judge.

Following a jury trial, Darievq Javon Richardson was convicted of hijacking a

motor vehicle,1 attempted armed robbery,2 and reckless conduct3 as a lesser included

offense of aggravated assault.4 The trial court denied Richardson’s second amended

motion for new trial, and he appeals, arguing that (1) the evidence was insufficient to

1 See OCGA § 16-5-44.1 (b). 2 See OCGA §§ 16-4-1, 16-8-40 (a) (2). 3 See OCGA § 16-5-60 (b). The jury acquitted Richardson of second degree criminal damage. 4 Previously, the State appealed the trial court’s order granting in part and denying in part Richardson’s motion to suppress. This Court reversed in part and vacated in part the trial court’s order in State v. Richardson, 353 Ga. App. 368 (837 SE2d 524) (2020). support the verdicts of hijacking a motor vehicle and attempted armed robbery; and

the trial court erred by (2) failing to give a jury charge for reckless conduct as a lesser

included offense in hijacking a motor vehicle and attempted armed robbery; (3) by

conducting a bench conference outside Richardson’s presence and by sentencing him

via teleconference; and (4) by failing to inquire into instructions potentially missed by

a sleeping juror, regarding which error Richardson also claims ineffective assistance

of counsel. For the reasons that follow, we affirm.

Viewed in favor of the verdict,5 the record shows that at around 10:00 p.m. on

the evening of January 22, 2018, a deputy responded to a “hang-up” 911 call, which

the deputy later discovered was related to a domestic dispute call at the apartment

where 18-year-old Richardson lived with his mother and younger sister. The mother

described her son to police as wearing a black hoodie and dark pants, and the sister had

called 911 because of the argument between them. The deputy left to patrol the

complex to attempt to find him.

While it was still dark at approximately 5:00 a.m., the same deputy responded

to the same apartment complex following a 911 call reporting an attempted car

5 See Castro-Moran v. State, 356 Ga. App. 248 (845 SE2d 708) (2020). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). 2 hijacking and armed robbery. The victim told police that he had left his 2007 Nissan

Altima running to warm up in the winter weather before returning to the car, at which

time he saw a young man standing at the top of the stairwell in the breezeway. As the

victim approached his car, the 17 to 19-year-old man, who was wearing a black do-rag,

black hoodie with white spots on the right rear shoulder, dark pants or jeans, and

holding a handgun,6 came up behind him and demanded his car keys and wallet.

The victim did not believe the assailant to be in a violent state (he described him

as having a shaky voice, unsteady hands, and apparent lack of experience with a

firearm), so he swiped at the weapon before running away to avoid a “fear bullet.”

The report from the incident stated that the victim threw down his wallet before

running, but during his testimony, the victim denied doing so intentionally; he

maintained possession of his car key during the incident. The assailant stopped

chasing the victim, who eventually encountered the first officer to arrive, and the

victim lost no valuables from his wallet.

The two deputies accompanied the victim back to his car, which was still parked

in the same location within view of Richardson’s apartment. The car’s engine was still

6 This was later determined to be a BB gun or air-powered pellet gun. 3 running, but its windshield was shattered, and a fire extinguisher was stuck under the

front of the car. While investigating, officers saw blinds moving in the front window

of Richardson’s apartment, prompting the officers to approach. When the officers

knocked on the door, Richardson’s mother answered, and they asked her whether

Richardson was there. Before Richardson came to the door, the officers unholstered

their weapons based on the victim’s statement that the assailant had a weapon, and

Richardson exited the apartment with his hands raised in response, stating that he was

not armed.

After Richardson was out of the apartment with the officers, the victim

identified him as the individual who had assailed him earlier. The officers arrested

Richardson, who did not have a weapon on him at that time, but the mother allowed

officers to enter the apartment, and they discovered a BB gun that was near the blinds

through which officers believed Richardson had watched during their investigation

earlier that morning. Richardson also admitted to the officers that he “had done

something stupid,” that he had the BB gun, and that he had tried to take the victim’s

car.

4 At the close of evidence, the jury returned guilty verdicts as to attempted

hijacking of a motor vehicle, attempted armed robbery, and reckless conduct. After

the trial court denied his amended motion for new trial, Richardson appealed.

1. Richardson first argues that the evidence was insufficient to support the

verdicts of attempted hijacking a motor vehicle and attempted armed robbery.

When reviewing the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.7

7 (Citation omitted; emphasis in original.) Jackson, 443 U. S. at 319 (III) (B). 5 Richardson argues that because the jury acquitted him of aggravated assault8 for

brandishing a deadly weapon at the victim and convicted him instead of reckless

conduct,9 there was insufficient evidence of intent to support the guilty verdicts for

attempted hijacking a motor vehicle10 and attempted armed robbery,11 both of which

8 “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (a) (2). “A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). 9 OCGA § 16-5-60 (b) states that “[a] person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his or her act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.” 10 Hijacking a motor vehicle occurs “when [a] person while in possession of a firearm or weapon obtains a motor vehicle from an individual or the presence of another individual by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 (b). Weapon is defined to include a replica weapon. See OCGA § 16-5-44.1 (a) (3). 11 Armed robbery is defined as “when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another[.]” OCGA § 16-8-40 (a) (2). 6 charges he argues were predicated on the same act of brandishing the BB gun as the

act of aggravated assault.

As a general rule, a guilty verdict cannot be challenged on the ground that the jury’s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count. Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.12

Moreover, in State v. Springer,13 the Supreme Court of Georgia overturned prior

precedent and held that “multiple guilty verdicts for the same conduct that are based

on varying levels of mens rea are not mutually exclusive,” and therefore, do not

require reversal of such jury verdicts.14 For the same reason then, the jury’s guilty

verdict as to reckless conduct in this case does not show that evidence was, as a matter

of law, insufficient to support the jury’s finding of guilt for the other two charges.

12 (Citation omitted.) State v. Springer, 297 Ga. 376, 377 (1) (774 SE2d 106) (2015). 13 Id. 14 Id. at 382 (1). 7 The evidence as stated above supports the verdict because the statute includes

attempt in its definition, and the jury could find that Richardson’s act of demanding

the victim’s keys and wallet, even if the victim ultimately failed to do so, constituted

an attempt to obtain the motor vehicle and attempt to rob him of his wallet.15 The jury

could have determined that Richardson intentionally brandished the BB gun, but that

the evidence failed to support a finding that he attempted to commit a violent injury

or place the victim “in reasonable apprehension of immediately receiving a violent

injury”16 to support a guilty verdict of aggravated assault. In any event, this

enumeration is without merit, and the trial court did not err by denying his motion for

new trial as to this issue.

2. Richardson also argues that the trial court erred by failing to give a jury

charge of reckless conduct as a lesser included offense for attempted hijacking of a

motor vehicle and attempted armed robbery. As an initial matter, Richardson cites no

15 See, e.g., Wilson v. State, 344 Ga. App. 285, 287-288 (1) (810 SE2d 303) (2018) (evidence was sufficient to support charge of attempted armed robbery); Campbell v. State, 314 Ga. App. 299, 301 (724 SE2d 24) (2012) (attempted hijacking). See also OCGA § 16-4-1 (defining criminal attempt). 16 OCGA § 16-5-20 (a). 8 cases in which reckless conduct has been given as a lesser included offense for either

of these crimes.17

[I]n order to authorize a jury instruction on a lesser included offense, there must be some evidence in the record that the defendant committed that offense. But where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.18

“We review a trial court’s refusal to give a requested jury charge only for an abuse of

discretion.”19

Richardson filed requests to charge, which he later amended to request that the

trial court charge disorderly conduct or reckless conduct as lesser included offenses

for all the counts against him. The trial court, however, charged the jury with the

requested lesser included offense of reckless conduct only with regard to aggravated

assault. Although the trial court’s decision not to give an instruction for reckless

17 OCGA § 16-8-41 (a) states that “[t]he offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.” 18 (Citations and punctuation omitted.) Stepp-McCommons v. State, 309 Ga. 400, 403 (2) (845 SE2d 643) (2020). 19 (Punctuation omitted.) Castro-Moran, 356 Ga. App. at 250 (1) (a). 9 conduct as a lesser included offense of either attempted hijacking or attempted armed

robbery arguably resulted in some inconsistency among the verdicts, we cannot say

that the failure to so charge was an abuse of discretion. The evidence shows that

Robinson either completed the crimes of attempted hijacking and attempted armed

robbery, or he completed neither of those crimes.20 If the jury believed that

Richardson did not intend to attempt take the victim’s car or wallet, then it would

have acquitted him of those charges. Accordingly, this enumeration is without merit.

3. Richardson asserts that the trial court erred by failing to inquire into a

sleeping juror. Richardson also raises a related claim of ineffective assistance of

counsel for counsel’s failure to request remedies from the court regarding the juror.

(a) Trial court error. After the close of evidence and during the trial court’s

charge to the jury, the State brought to the court’s attention that one of the jurors

appeared to be sleeping.21 The trial court admonished the panel to remain alert during

the remainder of the proceedings, and it provided the jurors with a written copy of the

charges during deliberation. Richardson, however, argues that the trial court should

20 See, e.g., Stepp-McCommons 309 Ga. at 403-409 (2). 21 Apparently, the jurors were dispersed throughout the courtroom based on the public health protocols at the time. 10 have taken more steps to determine what the juror may have missed from the charge

and whether the juror understood the law being charged.

In the context of a juror alleged to have been sleeping during court proceedings,

“this [C]ourt will not interfere with a trial court’s decision regarding removal of a

juror from a panel absent an abuse of that court’s discretion.”22

Pretermitting whether Richardson’s enumeration of error was preserved for

appeal,23 the record evinces no abuse of discretion on the part of the trial court in its

action regarding the alleged sleeping juror.24 As noted above, in addition to stopping

its instructions to admonish the panel to remain alert and attentive, the trial court sent

a written copy of the jury charges with the jury for deliberation. Accordingly, this

enumeration is without merit.25

(b) Ineffective Assistance of Counsel. Richardson’s trial counsel did not request

further action from the trial court regarding the alleged sleeping juror, and in his

22 Mathis v. State, 293 Ga. 837, 839 (2) (750 SE2d 308) (2013). 23 See id. at 838 (2) (explaining that because “counsel made no contemporaneous request for the trial court to [take certain action regarding an alleged sleeping] juror, we find this issue has been waived”). 24 See id. at 839 (2). 25 See id. 11 motion for new trial and now on appeal, Richardson contends that this failure

constituted ineffective assistance of counsel. The trial court determined that

Richardson failed to establish prejudice to support this argument even if trial

counsel’s failure could be considered deficient performance.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. Upon appellate review of that 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.26

At the motion for new trial hearing, trial counsel conceded that he did not think

about requesting the trial court to determine if the juror had missed portions of the

charge, but he “probably” should have requested the trial court to inquire into what

the juror may have missed. Trial counsel did not really think about the matter at the

time because he did not believe the juror had been sleeping for very long, but there was

26 (Punctuation omitted.) Styles v. State, 329 Ga. App. 143, 151 (3) (764 SE2d 166) (2014), quoting Colzie v. State, 289 Ga. 120, 124 (3) (710 SE2d 115) (2011). See also Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 12 no other strategic reason for failing to inquire further. Trial counsel testified that he

believed the trial court acted sufficiently because he was trying to be understanding

and considerate of the jurors, who had to follow pandemic protocol.

Based on the record as stated in Division 3 (a) and based on the testimony at the

motion for new trial, the trial court’s decision to deny the motion for new trial as to

this claim of ineffective assistance of counsel was not erroneous. Richardson presented

no evidence in the form of testimony from the juror that the individual was not aware

of the instructions, and because the written instructions were sent out for deliberation,

we discern no error in the trial court’s conclusion that Richardson has not established

prejudice in this instance.27

4. Finally, Richardson contends that the trial court erred by conducting a bench

conference outside his presence and by sentencing him via video conference.

“Embodied in the constitutional right to the courts under [the United States

Constitution and] Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 is the

27 See, e.g., Mathis, 293 Ga. at 840 (3) (resolving the issue of ineffective assistance of counsel for failure of trial counsel to further inquire into a sleeping juror on the basis that the defendant had failed to establish deficient performance); Lawson v. State, 280 Ga. App. 870, 874 (2) (f) (635 SE2d 259) (2006) (“rank speculation . . . is insufficient to establish an ineffective assistance claim”) (citation omitted). 13 right of the criminal defendant to be present at any stage of a criminal proceeding that

is critical to its outcome if the defendant’s presence would contribute to the fairness

of the procedure.”28

(a) Bench Conference. When the State noticed that a juror may have been

sleeping during instructions, a bench conference was held. Richardson argues that he

was not present at this conference, and this was a violation of his right to be present

at any stage of the court proceeding. To the extent that the incident could even be

considered a bench conference, it was vanishingly brief, and there was no discussion

— simply information given to the judge by one of the attorneys and the judge’s

acknowledgment of that information. The judge then admonished the jury to stay alert

and pay attention, and it provided a written copy of the full instructions to them

during deliberation.

28 (Punctuation omitted.) Smith v. State, 319 Ga. App. 590, 596 (6) (737 SE2d 700) (2013), quoting Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001). See also United States v. Gagnon, 470 U. S. 522, 526 (105 SCt 1482, 84 LE2d 486) (1985) (“The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.”) (citation omitted). 14 The Georgia Supreme Court has held that a conference of limited scope involving only the trial court and counsel is not a critical stage of the proceedings. No juror was present at the bench conference. Moreover, [Richardson] could not have made a meaningful contribution to the bench conference. There was simply no error in proceeding with the limited inquiry outside the presence of the defendant.29

(b) Sentencing. Robinson also argues that his right to be present during his

sentencing was violated because he was not physically present and appeared only via

video conference. At the beginning of the October 13, 2021 sentencing hearing, the

trial court asked Robinson if he was aware that sentencing would occur remotely and

not in person, to which Robinson responded that he had not known that prior to the

hearing, and the court explained that he had access to his attorney during the

proceeding and provided him with the opportunity to speak privately with the

attorney, which opportunity Robinson declined. At the hearing on the amended

29 (Citations and punctuation omitted.) Bennett v. State, 279 Ga. App. 371, 375 (4) (631 SE2d 402) (2006). See also Smith, 319 Ga. App. at 596 (6) (explaining that there was “no evidence in the record suggesting that [the defendant’s] presence at the bench during either housekeeping or legal discussions was necessary to defend against the charges, that his presence would have been useful to the resolution of any matter before the court, or that his absence from the sidebar conferences in any way affected the fairness of the trial procedure or caused [the defendant] to lose or waive any right or defense.”). 15 motion for new trial, counsel testified that he was unaware that Robinson would not

be in the courtroom physically, and for this reason, he had not discussed sentencing

via video conference with Robinson prior to the hearing. In its order denying his

motion for new trial as to this issue, the trial court determined that Robinson waived

his right to be physically present at the sentencing hearing by failing to object at that

time.

“Sentencing is a critical stage at which a defendant is generally entitled to be

present under the Georgia Constitution.”30 That said,

the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses. A defendant may relinquish his right in several ways: if he personally waives the right in court; if his counsel waives the right at his express direction; if his counsel waives the right in open court while he is present; or, as seen most commonly in our case law, if his counsel waives the right and the defendant subsequently acquiesces to that waiver. . . . Acquiescence may occur when a defendant remains silent after he becomes aware of the proceedings occurring in his absence, so long as he had sufficient information concerning the matters occurring outside his presence for his silence to be fairly construed as

30 (Punctuation omitted.) Bettis v. State, 357 Ga. App. 587, 593 (3) (851 SE2d 158) (2020) (vacating sentence and remanding for resentencing because the defendant had waived presence at sentencing during argument but requested to be present for the pronouncement of the sentence itself, which the trial court failed to do). 16 consent. The determination of whether a defendant acquiesced to the violation of his right to be present is often highly fact-specific. And the trial court’s findings of fact on the issue will be upheld on appeal unless clearly erroneous. 31

Assuming without deciding that a video conference does not constitute

presence for these purposes,32 we cannot say that the trial court clearly erred by

finding that the defendant acquiesced to appearing at the sentencing hearing via video

conference. Although neither Robinson nor his attorney was aware beforehand that

Robinson would not appear in person, Robinson could see and hear the proceedings,

he had access to his attorney (although he chose not to exercise it), and he did not

object to the method of the proceeding when discussing it with the trial court. Based

on this record, which includes the motion for new trial hearing at which Robinson

31 (Citations and punctuation omitted.) Champ v. State, 310 Ga. 832, 841 (2) (c) (854 SE2d 706) (2021). 32 Neither party cites Georgia criminal case law directly addressing this issue, but we need not reach that question. 17 declined to testify and the sentencing hearing at which he failed to object, we cannot

say that the trial court’s determination was clearly erroneous.33

Judgment affirmed. Hodges and Watkins, JJ., concur.

33 Compare id. at 844-848 (2) (c) (remanding for further proceedings in order to develop facts concerning the issue). 18