THIRD DIVISION DILLARD, P. J., GOBEIL and HODGES, 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
September 9, 2019
In the Court of Appeals of Georgia A19A0990. MILLER v. THE STATE.
DILLARD, Presiding Judge.
Following trial, a jury convicted Harold Miller of one count of theft by taking,
four counts of aggravated assault, one count of aggravated battery, one count of
reckless conduct, two counts of obstruction of a law-enforcement officer, one count
of fleeing from a law-enforcement officer, and one count of theft by receiving. On
appeal, Miller challenges the sufficiency of the evidence as to several of his
convictions and further contends that the trial court erred in denying his claims of
ineffective assistance of counsel. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that on October 3, 2014, Audrelia Harris and her mother drove to a repossession
1 See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011). impound lot in Forest Park to reclaim her vehicle, which had been taken there. After
Harris paid the fee, an employee retrieved her vehicle from inside the fenced-in lot
and parked it—with the engine still running—next to her mother’s vehicle just
outside the gate. And while Harris continued speaking to one of the impound lot’s
employees at a kiosk near the gate, her mother noticed a man—later identified as
Miller—walking on the side of the road toward where she was parked. Then, upon
reaching Harris’s still-running vehicle, Miller jumped into the driver’s seat and sped
away while the mother yelled and honked the horn to alert her daughter and the
impound employee of what was transpiring. Immediately, the owner of the impound
lot and one of his employees jumped into the owner’s tow truck and gave chase.
Within a few minutes, the two pursuers noticed that Miller had stopped at a red
light, at which point, the owner blocked Miller’s path with the tow truck. The
employee then exited the truck and ran to the driver’s side window of Harris’s vehicle
to confront Miller. But Miller immediately threw the vehicle into reverse, forcing the
employee to jump onto the hood to avoid being hit. Miller then drove forward,
swerved back and forth in order to throw the employee off the hood (which he
quickly succeeded in doing), and then sped away. Subsequently, the owner drove his
employee to a nearby fire station, where emergency medical technicians began
2 treating him for injuries to his elbow, knees, and back. And while there, the impound-
lot owner contacted police and one of his other employees, who he then had use a
computer program to track Harris’s vehicle via a previously installed GPS tracker.
With this assistance, police officers tracked the vehicle to a motel on Tara Boulevard,
where Miller had apparently abandoned it.
Shortly thereafter, based on surveillance photos from security cameras at the
impound lot and motel, as well as interviews with a few women who had been staying
at another motel frequented by the man ultimately identified as Miller, a detective
with the Forest Park Police Department determined that the suspect in the theft of
Harris’s vehicle went by the street nickname of “Bull” and was possibly named
Harold Turner. Consequently, the detective obtained an arrest warrant for Harold
Turner and passed the information, including a physical description, on to the Clayton
County Sheriff’s Office.
On October 10, 2014, one week after the theft of Harris’s vehicle, a Clayton
County sheriff’s deputy received information from a confidential informant that Bull
was at an abandoned house on Tara Road. So, at around 8:30 p.m. that evening, four
uniformed deputies—driving in two separate marked vehicles—went to the house,
intending to make an arrest. Approaching from two different directions, Deputies
3 Manning and Kearns parked just south of the house, while Deputies Hogan and
Montford parked to the north. And given the time of night and the fact that the home
was abandoned and had no lighting, the deputies were forced to use flashlights as
they approached the house via two gravel driveways separated by approximately a
few yards. Shortly after the deputies began their approach, Deputies Manning and
Kearn saw a white male—who fit the description of Bull and was later identified as
Miller—run toward the back of the property where a white van was parked. Deputy
Manning yelled, “Sheriff’s Office! Show me your hands!” But Miller, ignoring the
deputy’s command while looking straight at him, jumped into the driver’s seat of the
van and started the engine. Deputy Manning yelled at Miller to exit the vehicle, but
instead, Miller began driving toward the two deputies, who drew their weapons and
ducked behind a nearby tree as the van then veered past them to their right.
Meanwhile, separated from Deputies Manning and Kearns by only a few yards
but in nearly complete darkness, Deputies Hogan and Montford heard Deputy
Manning identify himself as a sheriff and order someone to stop but could not
initially see to whom the order was directed. A moment later, they heard an engine
revving up and tires screeching. As both Deputies Hogan and Montfort drew their
weapons, they saw a white van accelerating directly toward them. Fearing he could
4 not fire his weapon without hitting Deputy Montford, who was slightly ahead of him,
Deputy Hogan dove out of the way as the van bore down on them. But Deputy
Montford fired several shots at Miller, with one hitting him, and then dove out of the
van’s way, avoiding being struck by mere inches. As the van sped off, the deputies
notified dispatch that shots had been fired and issued a BOLO, before returning to
their vehicles in an attempt to follow Miller.
A few miles away, Sergeant Arnzen—another Clayton County sheriff’s
deputy—was on patrol in a marked vehicle when he heard the dispatch that shots had
been fired and the BOLO for the white van. And already aware that the deputies had
planned to execute the arrest warrant for Bull at the Tara Road address that night,
Sergeant Arnzen headed in that direction. Then, less than two miles away from the
house, Sergeant Arnzen spotted a white van driving slowly and weaving. The van
turned on a dead-end street and, upon reaching the cul-de-sac, drove into the yard of
a home, nearly hitting the house before coming to a stop. As Sergeant Arnzen exited
his patrol vehicle and approached the van, he noticed that the driver matched the
description for Bull. Sergeant Arnzen then drew his weapon and loudly shouted,
“Sheriff’s Office! Stop the vehicle! Show me your hands!” Miller ignored the
sergeant’s commands and instead continued trying to drive through the yard until the
5 front end of the van pushed up against some tall shrubs. Sergeant Arnzen repeated his
orders to stop the vehicle, but Miller again refused to comply, responding, “Fuck you,
I’ll hit you too.” Miller then threw the van in reverse, at which point, Sergeant Arnzen
holstered his weapon and dove into the van through the open driver’s side window.
He then shoved Miller over, and—with his legs hanging outside the window—forced
the van’s gearshift into park. Once the van stopped, Sergeant Arnzen climbed out of
the vehicle, drew his weapon, and held Miller at gunpoint until the other deputies
arrived.
Upon the arrival of backup, Sergeant Arnzen requested an ambulance in light
of Miller’s gunshot wound, and the ambulance then transported Miller to a local
hospital. In the aftermath of Miller’s arrest, he admitted that he was known as “Bull,”
but the deputies determined his identity was Harold Miller rather than Turner. The
deputies also learned that the white van belonged to the owner of a local restaurant
and had been stolen earlier that day when the owner’s son left the keys in the ignition
while unloading groceries.
Thereafter, the State charged Miller, via indictment, with one count of theft by
taking (relating to the theft of Harris’s vehicle), and one count each of aggravated
assault, aggravated battery, and reckless conduct (all relating to the impound-lot
6 employee’s attempt to thwart the theft of Harris’s vehicle). In the same indictment,
the State also charged Miller with two counts of obstruction of a law-enforcement
officer, one count relating to his refusal to obey Deputy Manning’s commands and
the other relating to his refusal to obey Sergeant Arnzen’s; five counts of aggravated
assault upon a law-enforcement officer (relating to his attempts to hit each of the
deputies with the van); one count of fleeing from a law-enforcement officer (relating
to his refusal to obey Sergeant Arnzen’s order to stop the van); and one count of theft
by receiving (relating to the stolen white van).
The case ultimately proceeded to trial, during which the State submitted the
evidence noted above. In addition, the State called as witnesses the two women who
lived at the motel where Miller often stayed. Both women identified Miller as the
person they knew by the nickname “Bull.” And one of the women further testified
that, shortly after the October 3, 2014 theft of Harris’s vehicle, Miller bragged about
stealing a car and someone trying to stop him by jumping onto the vehicle’s hood.
Then, at the conclusion of the trial, the jury found Miller guilty on the count of theft
by taking, four counts of aggravated assault (specifically those relating to the
impound employee, Deputies Montford and Hogan, and Sergeant Arnzen), the count
of aggravated battery as to the impound-lot employee, the count of reckless conduct,
7 the two counts of obstruction of a law-enforcement officer, the count of fleeing from
a law-enforcement officer, and the count of theft by receiving. The jury found Miller
not guilty on the counts of aggravated assault as to Deputies Manning and Kearns.
Afterward, Miller obtained new counsel and filed a motion for new trial, in
which he argued, inter alia, that his trial counsel rendered ineffective assistance. The
State filed a response, and the trial court conducted a hearing on the motion, during
which Miller’s trial counsel testified. Not long thereafter, the court issued an order
denying Miller’s motion. This appeal follows.
1. In seven separate enumerations of error, Miller contends that the evidence
was insufficient to support his convictions of aggravated assault upon Sergeant
Arnzen and Deputies Montford and Hogan, obstruction of Sergeant Arnzen and
Deputy Manning, fleeing from Sergeant Arnzen, and theft by receiving of the white
van. In doing so, Miller concedes that he committed the acts alleged in the indictment
but, nonetheless, maintains that the evidence was insufficient because the deputies
and sergeant were not lawfully discharging their duties at the time he committed those
acts. We disagree.
When a criminal conviction is appealed, the evidence must be viewed in the
light most favorable to the verdict, and the appellant no longer enjoys a presumption
8 of innocence.2 And in evaluating the sufficiency of the evidence, we do not weigh the
evidence or determine witness credibility, but “only determine whether a rational trier
of fact could have found the defendant guilty of the charged offenses beyond a
reasonable doubt.”3 Thus, the jury’s verdict will be upheld so long as there is “some
competent evidence, even though contradicted, to support each fact necessary to make
out the State’s case.”4 With these guiding principles in mind, we turn to Miller’s
specific claims concerning the sufficiency of the evidence supporting his convictions.
And to do so, we will first address his contention that the officers who confronted him
were not lawfully discharging their duties.
The Supreme Court of the United States has construed the Fourth Amendment
to the United States Constitution5 so as to set forth three tiers of police-citizen
2 See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010) (noting that following conviction, an appellant no longer enjoys a presumption of innocence). 3 Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). 4 Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted); accord Westbrooks v. State, 309 Ga. App. 398, 399-400 (1) (710 SE2d 594) (2011). 5 U.S. CONST. amend IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
9 encounters:6 “(1) communication between police and citizens involving no coercion
or detention . . . , (2) brief seizures that must be supported by reasonable suspicion,
and (3) full-scale arrests that must be supported by probable cause.”7
In first-tier encounters, police may “approach citizens, ask for identification,
ask for consent to search, and otherwise freely question the citizen without any basis
or belief of criminal activity so long as the police do not detain the citizen or convey
the message that the citizen may not leave.”8 But is well settled that a citizen’s ability
to “walk away from or otherwise avoid a police officer is the touchstone of a first-tier
encounter.”9 In fact, even running from police during a first-tier encounter is “wholly
not be violated. . . .”); see also Ga. Const. art 1, § 1, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized.”). 6 Ewumi v. State, 315 Ga. App. 656, 658 (1) (727 SE2d 257) (2012); see State v. Walker, 295 Ga. 888, 889 (764 SE2d 804) (2014) (noting that Fourth Amendment jurisprudence recognizes three tiers of police-citizen encounters). 7 Ewumi, 315 Ga. App. at 658 (1) (punctuation omitted); accord Walker, 295 Ga. at 889. 8 Ewumi, 315 Ga. App. at 658 (1) (punctuation omitted); accord Walker, 295 Ga. at 889. 9 Black v. State, 281 Ga. App. 40, 44 (1) (635 SE2d 568) (2006) (punctuation omitted); accord Johnson v. State, 343 Ga. App. 310, 312 (807 SE2d 101) (2017).
10 permissible.”10 And, of course, an individual may “refuse to answer or ignore the
request and go on his way if he chooses, for this does not amount to any type of
restraint.”11
In contrast, in a second-tier encounter—even in the absence of probable
cause—a police officer may “stop persons and detain them briefly, when the officer
has a particularized and objective basis for suspecting the persons are involved in
criminal activity.”12 But importantly, in order to do so, the officer must “have more
than a subjective, unparticularized suspicion or hunch.”13 Indeed, the officer’s action
must be “justified by specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.”14 Furthermore, the
10 Black, 281 Ga. App. at 44 (1) (punctuation omitted); accord Johnson, 343 Ga. App. at 312. 11 Ewumi, 315 Ga. App. at 658 (1) (punctuation omitted); accord Walker, 295 Ga. at 889. 12 Ewumi, 315 Ga. App. at 658 (1) (punctuation omitted); accord Walker, 295 Ga. at 889-90. 13 Ewumi, 315 Ga. App. at 658 (1) (punctuation omitted); accord Walker, 295 Ga. at 890. 14 Ewumi, 315 Ga. App. at 658-59 (1) (punctuation omitted); accord Walker, 295 Ga. at 890.
11 officer must have “some basis from which the court can determine that the detention
was neither arbitrary nor harassing.”15
Here, Miller contends that the evidence supporting his convictions was
insufficient because the officers were not lawfully discharging their duties at the time
of their confrontation. Specifically, he argues that when the officers encountered him
at the abandoned home on Tara Road, they lacked any reasonable, articulable
suspicion that he was involved in criminal activity. As a result, he concludes that this
was a first-tier encounter from which he was free to leave, even run. Miller’s
argument is without merit.
On the night in question, the officers had an arrest warrant for a person known
by the nickname Bull and reliable information that this person was currently at the
abandoned Tara Road home. When they arrived, in uniform and marked patrol
vehicles, they saw Miller, who generally fit the description of the warrant’s subject,
and, therefore, they were authorized in their attempt to detain him pending his
identification.16 And while Miller argues that detaining him was unreasonable
15 Ewumi, 315 Ga. App. at 659 (1) (punctuation omitted); accord Walker, 295 Ga. at 890. 16 See State v. Hargis, 294 Ga. 818, 824 (2) (a) (756 SE2d 529) (2014) (holding that officer’s detention and subsequent arrest of defendant was lawful given officer’s
12 because he did not match the description in the warrant, the description in the warrant
was based on the witnesses’ accounts of the theft from the impound lot, as well as
surveillance photos. Thus, to the extent there were any inconsistencies in those
descriptions, it was up the jury to resolve them.17 Accordingly, Miller’s contention
that the evidence was insufficient to conclude that the officers lawfully discharged
their duties lacks merit. And having so found, we now direct our attention to an
analysis of the evidence supporting the specific convictions being challenged by
Miller.
belief that defendant was the subject of an arrest warrant); Francis v. State, 345 Ga. App. 586, 589 (1) (814 SE2d 571) (2018) (holding that having encountered defendant almost immediately upon entering house, his seizure was authorized pending his identification and determination of whether he was the subject of arrest warrant); Mauge v. State, 279 Ga. App. 36, 38 (630 SE2d 174) (2006) (concluding that officers had probable cause to detain defendant until they could ascertain he was not the person named in the arrest warrant). 17 See Singleton v. State, 324 Ga. App. 141, 143-44 (1) (749 SE2d 753) (2013) (holding that inconsistencies in a witness’s description of a perpetrator are a matter for the jury). Although Miller does not explicitly challenge the validity of the warrant, even if he had, “[o]ur Supreme Court has held that probable cause to arrest arises once an arresting officer learns of the existence of an arrest warrant and that ‘whether or not the information about the warrant later proves incorrect or invalid is immaterial.’” State v. Lucas, 332 Ga. App. 463, 465 (3) (773 SE2d 419) (2015), citing Harvey v. State, 266 Ga. 671, 672-73 (469 SE2d 176) (1996).
13 (a) Aggravated assault on a law-enforcement officer. Under OCGA § 16-5-21
(a) (2), 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[.]” And OCGA § 16-5-20 (a) (1-2) provides that “[a] person commits the
offense of simple assault when he or she either . . . [a]ttempts to commit a violent
injury to the person of another; or . . . [c]ommits an act which places another in
reasonable apprehension of immediately receiving a violent injury.”
In this matter, Counts 8, 9, and 12 of the indictment charged Miller with
aggravated assault by alleging that he made an assault upon Sergeant Arnzen and
Deputies Montford and Hogan, respectively, “with a motor vehicle, an object which
when used offensively against a person is likely to result in serious bodily injury, by
trying to hit said peace officer with said motor vehicle, while said peace officer was
engaged in the performance of his official duties[.]” Indeed, the evidence shows that
Miller drove the stolen white van directly toward Deputies Montford and Hogan
when they attempted to detain him, only missing them when they dove out of the way.
The evidence also shows that after driving the van into the yard of a residence and
being ordered to stop by Sergeant Arnzen, Miller verbally threatened to “hit” Arnzen
14 and then attempted to reverse the direction of the van such that Arnzen believed that
he intended to carry out his threat. Given these circumstances, the evidence was
sufficient to support Miller’s aggravated-assault convictions.18
(b) Obstruction and fleeing. Under OCGA § 16-10-24 (a), “[e]xcept as
otherwise provided in subsection (b) of this Code section, a person who knowingly
and willfully obstructs or hinders any law enforcement officer . . . in the lawful
discharge of his or her official duties shall be guilty of a misdemeanor.” Somewhat
related, OCGA § 40-6-395 (a) provides:
It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his
18 See Myers v. State, 311 Ga. App. 668, 669-70 (1) (716 SE2d 772) (2011) (holding that evidence officer believed defendant’s vehicle would hit him and stepped backward to avoid being hit was sufficient to support defendant’s aggravated-assault conviction); Young v. State, 273 Ga. App. 151, 153 (1) (614 SE2d 257) (2005) (finding that evidence supported aggravated-assault conviction given officer’s testimony that defendant tried to hit him with his vehicle after officer initiated a traffic stop); Webb v. State, 256 Ga. App. 653, 654 (1) (569 SE2d 596) (2002) (holding that “one who aims a motor vehicle at another person may be convicted of aggravated assault regardless of whether the victim sustained any injuries or was even touched by the vehicle”).
15 or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.
Here, in Counts 5 and 11, the State charged Miller with obstruction of a law-
enforcement officer by alleging that he “did knowingly and willfully obstruct”
Deputy Manning and Sergeant Arnzen, respectively, “a law enforcement officer . . .
in the lawful discharge of his official duties by refusing to stop fleeing when given
verbal commands to do so by said law enforcement officer[,]” and “by refusing to
show his hands when given verbal commands to do so by said law enforcement
officer.” Additionally, in Count 10, the State charged Miller with fleeing by alleging
that he
did willfully flee a pursuing police officer, after having been given a visual signal to bring his vehicle to a stop by [Sergeant] Arnzen, an officer who at the time of giving such signal was in a uniform prominently displaying the officer’s badge of his office and the officer’s vehicle was appropriately marked showing it to be an official police vehicle.
At trial, the evidence showed that both Deputy Manning and Sergeant Arnzen were
in uniform and driving marked patrol vehicles when they ordered Miller to stop and
he ignored those commands. Nevertheless, Miller argues that there was insufficient
16 evidence that the officers were lawfully discharging their duties by detaining him
during a first-tier encounter. But as noted supra, the officers were justified in
conducting, at the very least, a second-tier detention of Miller.19 Consequently,
Miller’s ability “to withdraw from a consensual first tier encounter does not apply
here.”20 Accordingly, the evidence sufficiently supported his convictions of
obstruction21 and fleeing.22
(c) Theft by receiving. Under OCGA § 16-8-7 (a), “[a] person commits the
offense of theft by receiving stolen property when he receives, disposes of, or retains
stolen property which he knows or should know was stolen unless the property is
19 See supra note 16 and accompanying text. 20 Prather v. State, 279 Ga. App. 873, 876 (2) (633 SE2d 46) (2006). 21 See White v. State, 310 Ga. App. 386, 390 (2) (b) (714 SE2d 31) (2011) (noting that because officers had probable cause to arrest defendant, evidence was sufficient to support allegation that officers lawfully discharged their duty and, thus, obstruction conviction); Massey v. State, 267 Ga. App. 482, 484 (600 SE2d 437) (2004) (holding that evidence supported obstruction conviction when defendant admitted resisting arrest but incorrectly claimed his arrest was unlawful). 22 See Sapp v. State, 337 Ga. App. 14, 15-16 (785 SE2d 654) (2016) (holding that evidence defendant fled uniformed officer despite officer’s commands he stop supported conviction for fleeing); Lightsey v. State, 302 Ga. App. 294, 294-95 (1) (690 SE2d 675) (2010) (holding that evidence defendant drove off after officers had ordered him to stop was sufficient to support conviction of fleeing a police officer).
17 received, disposed of, or retained with intent to restore it to the owner.” And because
of its very nature, the crime of theft by receiving is “one that is usually proved in
whole or in part by circumstantial evidence.”23 Consequently, possession of recently
stolen property, together with circumstantial evidence supporting an inference the
defendant knew the property was stolen, will “sustain a conviction for this crime.”24
In this matter, Count 13 of the indictment charged Miller with theft by
receiving of the white van that he was driving when he encountered the sheriff’s
deputies. At trial, the evidence undisputedly demonstrated that the van had been
stolen mere hours before Miller was observed by deputies driving it. Furthermore,
when the deputies attempted to detain him outside the Tara Road house, Miller
attempted to strike two of them with the van and then fled the scene in it. In addition,
the State introduced other prior-acts evidence showing that, in 2008, Miller was
arrested in Florida after leading police officers on a high-speed chase in a stolen
23 Lee v. State, 320 Ga. App. 573, 577 (1) (c) (740 SE2d 307) (2013) (punctuation omitted); accord Stacey v. State, 292 Ga. 838, 840 (1) (b) (741 SE2d 881) (2013). 24 Lee, 320 Ga. App. at 578 (1) (c) (punctuation omitted); see Thornton v. State, 292 Ga. 796, 797 (1) (b) (741 SE2d 641) (2013) (holding that knowledge to establish guilt for theft by receiving may be inferred from possession of recently-stolen property coupled with circumstantial evidence that would raise suspicion in ordinary prudent person).
18 truck. Given these circumstances, the evidence was sufficient to support an inference
that Miller was aware that the van was stolen and, thus, his conviction of theft by
receiving.25
2. Miller also contends that the trial court erred in denying his claims of
ineffective assistance of counsel because his counsel failed to (1) secure the
attendance of a defense witness, and (2) object to the trial court’s sentence, which
amounts to “cruel and unusual punishment” within the meaning of the United States
and Georgia constitutions.26 Again, we disagree.
25 See id. at 577-78 (1) (c) (affirming defendant’s theft-by-receiving conviction when evidence showed that defendant was driving stolen vehicle only 12 hours after it was stolen, attempted to flee from police in vehicle, and on a prior occasion had similarly fled police while driving a stolen vehicle); Dawson v. State, 271 Ga. App. 217, 218-19 (1) (609 SE2d 158) (2005) (holding that evidence that defendant possessed vehicle four days after it was stolen and fled when officers attempted to stop him, together with similar transaction evidence, was sufficient to authorize the jury to infer guilty knowledge and support theft-by-receiving conviction). 26 U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis supplied)); see also Ga. Const., art. I, § 1, ¶ XVII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.” (emphasis supplied)).
19 In order to evaluate Miller’s claims of ineffective assistance of counsel, we
apply the two-pronged test established in Strickland v. Washington,27 which requires
Miller to show that his trial counsel’s performance was “deficient and that the
deficient performance so prejudiced him that there is a reasonable likelihood that, but
for counsel’s errors, the outcome of the trial would have been different.”28 In addition,
there is a strong presumption that trial counsel’s conduct falls within the broad range
of reasonable professional conduct, and a criminal defendant must overcome this
presumption.29 In fact, the reasonableness of counsel’s conduct is “examined from
counsel’s perspective at the time of trial and under the particular circumstances of the
case[.]”30 Importantly, decisions regarding trial tactics and strategy may form the
basis for an ineffectiveness claim only if “they were so patently unreasonable that no
27 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 28 Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland, 466 U.S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012). 29 Chapman, 273 Ga. at 350 (2); see Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (punctuation omitted)). 30 Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016).
20 competent attorney would have followed such a course.”31 And unless clearly
erroneous, this Court will “uphold a trial court’s factual determinations with respect
to claims of ineffective assistance of counsel; however, a trial court’s legal
conclusions in this regard are reviewed de novo.”32 Bearing this well-established
analytical framework in mind, we will now consider Milller’s specific claims of
ineffective assistance of counsel.
(a) Failure to ensure attendance of an allegedly exculpatory witness. Just
before the close of evidence, trial counsel informed the court that a defense witness
named Barry Stevens would not be able to testify that day, as originally scheduled,
because he was having difficulty getting to the courthouse. In light of this witness’s
absence, Miller’s trial counsel requested a continuance but also informed the court
that he was ready to proceed with closing arguments if necessary. The State objected
to any continuance, and the trial court denied trial counsel’s request. At the hearing
on Miller’s motion for new trial, trial counsel testified that he recalled interviewing
31 Id. 32 Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014); accord Duncan v. State, 346 Ga. App. 777, 783 (2) (815 SE2d 294) (2018); Howard v. State, 340 Ga. App. 133, 139 (3) (796 SE2d 757) (2017).
21 Stevens and that he intended to call him to testify regarding the alleged identity of the
person originally named in the warrant for Miller’s arrest.
Miller now argues that his trial counsel performed deficiently by failing to
secure Stevens’s attendance at trial via a subpoena, which he claims would have
allowed him to successfully request a continuance33 when the witness failed to appear,
and that Miller was prejudiced by this because Stevens would have testified that
Miller was not the person described in the arrest warrant obtained after the theft of
the vehicle from the impound lot. But as our Supreme Court has held, “[t]he decision
as to which defense witnesses to call is a matter of trial strategy and tactics; tactical
errors in that regard will not constitute ineffective assistance of counsel unless those
errors are unreasonable ones no competent attorney would have made under similar
circumstances.”34 Furthermore, during the motion for new trial hearing, Miller failed
33 See Stevens v. State, 261 Ga. App. 73, 74 (2) (581 SE2d 685) (2003) (noting that a defendant cannot complain of the trial court’s failure to grant a continuance because of the absence of a witness, as he failed to subpoena the witness); OCGA § 17-8-25. 34 Dickens v. State, 280 Ga. 320, 321 (2) (627 SE2d 587) (2006) (punctuation omitted); accord Brooks v. State, 323 Ga. App. 681, 684 (2) (747 SE2d 688) (2013); Felder v. State, 286 Ga. App. 271, 277 (5) (a) (648 SE2d 753) (2007); see Hardin v. State, 344 Ga. App. 378, 390 (3) (810 SE2d 602) (2018) (“The decision as to which witnesses to call is a matter of trial strategy within the exclusive purview of the attorney after consultation with the client.”).
22 to actually show that Stevens’s testimony would have been favorable to his defense
or changed the outcome of the trial. Indeed, Stevens did not testify at the hearing, and
his trial counsel’s “testimony about what he thought [Stevens’s] testimony might have
been was mere speculation and hearsay.”35 And to show prejudice resulting from
counsel’s failure to call a witness, Miller “was required to offer more than mere
speculation that the witness may have had evidence that would have assisted [his]
case at trial.”36 Additionally, Miller cannot rely on his trial counsel’s testimony about
what Stevens might have said as it would be hearsay.37 Again, as our Supreme Court
has cautioned,
[h]earsay evidence cannot be used either under the first Strickland prong to rebut the reasonableness of trial counsel’s tactical decision or under
35 Felder, 286 Ga. App. at 277 (5) (a); accord Marshall v. State, 324 Ga. App. 348, 349 (1) (b) (750 SE2d 418) (2013). 36 Dickens, 280 Ga. at 322 (2) (punctuation omitted); accord Felder, 286 Ga. App. at 277 (5) (a). 37 See Dickens, 280 Ga. at 322 (2) (noting that it would be hearsay for a defendant to use defense counsel’s testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness’s testimony); Dewberry v. State, 271 Ga. 624, 625 (523 SE2d 26) (1999) (same); Felder, 286 Ga. App. at 277 (5) (a) (noting that a defendant cannot rely on testimony at hearing on motion for new trial about what an uncalled witness might have said in order to establish the truth of that uncalled witness’s testimony as such would constitute hearsay).
23 the second Strickland prong to establish that the defense was prejudiced by counsel’s deficient performance. Either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness’s testimony.38
Thus, when, as here, “the defendant fails to proffer the testimony of an uncalled
witness, he cannot prove that there is a reasonable probability that the trial would
have ended differently.”39 Accordingly, the trial court did not err in denying Miller’s
claim of ineffective assistance in this regard.
(b) Failure to challenge the constitutionality of the trial court’s sentence. At
the conclusion of the sentencing hearing, the trial court imposed separate 20-year
sentences as to each of Miller’s four aggravated-assault convictions with each of the
sentences to be served consecutively. As a result, the court imposed a prison sentence
upon Miller totaling 100 years. Miller now argues that his trial counsel rendered
ineffective assistance by failing to challenge this sentence as constituting cruel and
38 Dickens, 280 Ga. at 322 (2) (punctuation omitted); accord Felder, 286 Ga. App. at 277-78 (5) (a). 39 McDaniel v. State, 279 Ga. 801, 802 (2) (c) (621 SE2d 424) (2005) (punctuation omitted); accord Felder, 286 Ga. App. at 278 (5) (a); see Hardin, 344 Ga. App. at 390-91 (3) (holding that because defendant failed to proffer the testimony of his uncalled witness, he cannot prove that there was a reasonable probability the trial would have ended differently).
24 unusual punishment within the meaning of the United States and Georgia
Constitutions and as an abuse of the trial court’s sentencing discretion.
Importantly, Miller waived any direct constitutional challenge to his sentence
by failing to raise such a challenge at the first opportunity (i.e., the sentencing
hearing),40 which is what gives rise to his current assertion that trial counsel rendered
ineffective assistance by failing to make such a challenge.41 Turning to the statutes
at issue, OCGA § 16-5-21 (b) provides: “Except as provided in subsections (c)
through (k) of this Code section, a person convicted of the offense of aggravated
assault shall be punished by imprisonment for not less than one nor more than 20
years.” In addition, OCGA § 17-10-10 (a) provides that when “at one term of court
a person is convicted on more than one indictment or accusation, or on more than one
40 See Jones v. State, 290 Ga. 670, 673-74 (3) (725 SE2d 236) (2012) (noting that “a constitutional attack on a sentencing statute should normally be made no later than the sentencing hearing, at a time when corrective action is still possible” and that, because appellant “failed to raise his constitutional challenges at the first available opportunity during the sentencing hearing” and instead “first raised [them] in his amended motion for new trial,” his challenges were untimely and not subject to review). 41 See id. at 674 (3) (holding that, because appellant had waived review of constitutional challenge to sentencing statute by failing to raise it at the first opportunity, “the trial court correctly proceeded to examine whether [the appellant’s] trial counsel was ineffective for failing to raise constitutional challenges to the sentencing statutes”).
25 count thereof, and sentenced to imprisonment, the sentences shall be served
concurrently unless otherwise expressly provided therein.” And in interpreting this
statute, the Supreme Court of Georgia has held that “[c]oextensive with their ability
to impose a sentence that fits the crime, trial courts have great discretion in
determining whether to run sentences concurrently or consecutively.”42 In fact, the
discretionary assessment of punishment within legislatively prescribed boundaries has
“long been ingrained and accepted in American jurisprudence, and OCGA § 17-10-10
(a) similarly frees a court to make a determination of whether to aggregate
sentences.”43 Thus, our Supreme Court has held that within the law, there is “no
limitation on this broad discretion that would preclude a trial court from running
sentences partially concurrent and partially consecutive to one another.”44
In this matter, the trial court imposed four separate 20-year sentences upon
Miller for each of his four aggravated-assault convictions and ordered that those
sentences be served consecutively. Miller argues that his trial counsel rendered
42 State v. Riggs, 301 Ga. 63, 69 (2) (a) (799 SE2d 770) (2017). 43 Id. (punctuation omitted); accord Rooney v. State, 287 Ga. 1, 3-4 (3) (690 SE2d 804) (2010). 44 Riggs, 301 Ga. at 70 (2) (a).
26 ineffective assistance by failing to object to what amounted to a sentence of 100
years, which he characterizes as unconstitutionally cruel and unusual. But if the
sentence falls within the statutory range of punishment set by the General Assembly,
the presumption is that the sentence does not violate the Eighth Amendment, and the presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.45
Here, it is undisputed that the 20-year sentence for each separate aggravated assault
falls within the statutory range.46 And Miller has failed to demonstrate that this
punishment was so excessive in proportion to the offenses as to shock the conscience.
Indeed, the evidence showed that Miller stole a vehicle and then used that vehicle to
assault a person attempting to thwart that theft. Then, a week later, Miller—driving
yet another stolen vehicle—nearly struck three separate law-enforcement officers,
who were attempting to arrest him. And while it is undeniable that the trial court
lengthened Miller’s cumulative imprisonment by imposing consecutive sentences,
45 Grier v. State, 339 Ga. App. 778, 789 (6) (792 SE2d 737) (2016) (punctuation omitted). 46 See OCGA § 16-5-21 (b).
27 “there is no constitutionally cognizable right to concurrent, rather than consecutive,
sentences.”47 Accordingly, Miller has failed to show either deficient performance by
trial counsel or a reasonable probability that the outcome would have been different
if the constitutional challenge to his sentence had been timely raised, and his
ineffective assistance claim is, therefore, without merit.48
For all these reasons, we affirm Miller’s convictions and the denial of his
motion for new trial.
Judgment affirmed. Gobeil and Hodges, JJ., concur.
47 Rooney, 287 Ga. at 6 (3) (punctuation omitted); accord Osborne v. State, 318 Ga. App. 339, 342 (2) (734 SE2d 59) (2012); see Simpson v. State, 310 Ga. App. 63, 64 (715 SE2d 675) (2011) (holding that because defendant’s sentence for several robberies was with the statutory range and because the law allows separate and consecutive punishment for separate criminal transactions, the trial court did not err in denying defendant’s motion to set aside a void sentence). 48 See Jones, 290 Ga. at 676 (3) (holding that defendant failed to establish that he received ineffective assistance of counsel by counsel’s failure to challenge sentence as equating to cruel and unusual punishment); Pepe-Frazier v. State, 331 Ga. App. 263, 273-74 (3) (c) (770 SE2d 654) (2015) (same).