FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and MCMILLIAN, J.
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/
March 10, 2015
In the Court of Appeals of Georgia A14A2349. EASON v. THE STATE.
MCMILLIAN, Judge.
Kenneth Andre Eason was found guilty by a jury of armed robbery, and the
trial court sentenced him as a recidivist to life in prison. See OCGA § 17-10-7 (a). He
appeals following the denial of his motion for new trial, as amended, arguing his trial
counsel was ineffective, the trial court should have given him more time to prepare
for trial, his in-custody statement was improperly admitted, and the trial court
improperly restricted his right to individually question prospective jurors. We affirm
for the reasons set forth below.
Construed to support the jury’s verdict,1 the evidence at trial shows that on
October 28, 2012, Charles Anderson went to an apartment complex located on Six
1 Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Flags Drive in Cobb County to ask his relative Willie Plummer if he could borrow
Plummer’s car. Plummer agreed, and Anderson left in the car with Dashon Hicks,2
ostensibly to look for day work. Instead, Anderson and Hicks drove to Fayetteville,
where they picked up Shantel Washington, whom Hicks identified as his cousin, and
her boyfriend, defendant Kenneth Eason.
According to Hicks, Anderson then drove to his residence on Marietta Street
in Atlanta, where he went inside and changed clothes while the others waited in the
car. When Anderson emerged, he had on a hoodie sweater and was carrying a black
or dark blue bag. Anderson got back in the car, and Washington, who had taken over
the driving, drove back to Six Flags Drive and parked about a quarter mile down from
a Waffle House located there. Eason, who was wearing a black shirt, then took a
black ski mask out of the bag and put it on, and Anderson zipped up his hoodie
sweater, which had some sort of “eye holes” in it, so that it covered his face.
Hicks testified that Anderson and Eason exited the car and ran toward the
Waffle House, while he and Washington waited in the car. According to witnesses
inside the Waffle House, two men dressed in black with their faces covered up
2 Hicks was 22 years old at the time of trial. Plummer is his grandfather and Anderson is his uncle.
2 entered the restaurant at about lunchtime on October 28, 2012, and the taller and
heavier of the two men stayed near the entrance of the restaurant and kept people
from leaving while the shorter and slighter man ran inside the restaurant with a gun.3
Anderson walked toward the register, which was open because a waitress was
checking out a customer, and brandishing a gun, demanded the money from the
register. Another waitress, who was also nearby, remarked to Anderson to get the
money himself, and Anderson jumped or climbed across a booth where customers
were sitting, reached inside the register, and took the money out with one hand while
pointing the gun at the waitress with the other hand.
Eason and Anderson ran out of the Waffle House and back toward the car
where Washington and Hicks were waiting. A witness, who was driving along Six
Flags Drive, saw two men who were wearing masks run down the street and jump
into a slowly moving car. She arrived at the Waffle House moments later, and when
she realized there had been a robbery, she made a U-turn and started following the
car. She instructed her daughter, who was in the car, to call police and was able to get
close enough to the other vehicle to give police the tag number. She then returned to
3 Anderson was described as substantially shorter and thinner than Eason.
3 the Waffle House where she talked with police and also gave them the tag number
and a description of the vehicle.
Hicks testified that after they left the vicinity of the Waffle House, Washington
drove back to Anderson’s apartment, and after sitting around for awhile, Anderson
decided to move Plummer’s car and report it stolen. However, at some point Hicks
and Plummer went to pick up the car and drive it back to Plummer’s apartment
complex. By that time, police had identified Plummer as the owner of the car, and
they arrived at the apartment complex about the same time Hicks and Plummer
returned with the car. Police surrounded the car, and Hicks subsequently identified
the other participants in the robbery.
Eason was arrested and, after receiving his Miranda warnings, gave a statement
to the lead detective in the case, Detective David Thorp, of the Cobb County Police
Department’s Crimes Against Persons Unit. The trial court found Eason’s statement
admissible following a Jackson-Denno hearing,4 and Thorp testified about Eason’s
statement at trial.5 According to Thorp, Eason told him that Washington and he were
4 Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 5 Although the statement was recorded, it was not introduced into evidence at trial because the sound quality was poor and Eason’s numerous references to having been in prison could not be redacted.
4 on their way to do laundry, but instead they got in the car with Anderson, who
mentioned “hitting a lick.” They then went to Anderson’s apartment, where he picked
up a bag containing a gun and a mask. Eason told Thorp he put on a mask, which
matched the description Thorp was given by witnesses, and Eason admitted to seeing
a gun, although he said he could not describe the gun because he was not familiar
with firearms.6 Thorp also said that Eason told him that after the robbery they went
back to Anderson’s apartment, and Anderson came up with the idea to attempt to
cover their tracks by reporting the car they used in the robbery as stolen. He also told
Thorp that Anderson gave him $200 as his share of the proceeds from the robbery.
Additional evidence will be set forth as necessary to address Eason’s specific
contentions on appeal.
1. Eason first argues that the trial court erred by not continuing the trial to
allow him an opportunity to “adequately” communicate with his trial counsel and to
properly prepare his defense at trial. Eason acknowledges he did not specifically
request a continuance, but argues the trial court should have understood he was
making such a request when he informed the court that he needed more time to confer
6 Neither the face coverings worn by the men nor the gun used in the robbery were ever located.
5 with his trial attorney about his defense, and when he asked the court to appoint him
new counsel because his current trial counsel did not know how he was going to
defend him at trial. However, as we have repeatedly held, by failing to move for a
continuance, Eason has waived his right to assert this error on appeal. Simmons v.
State, 291 Ga. 664, 667 (4) (732 SE2d 65) (2012); Watts v. State, 265 Ga. 888, 888
(2) (463 SE2d 696) (1995); Sheppard v. State, 297 Ga. App. 806, 812 (2) (678 SE2d
509) (2009).
Moreover, even assuming that the trial court treated Eason’s statements as a
request for a continuance and implicitly denied his request, Eason has failed to show
that he is entitled to reversal of this decision. Whether to allow a party additional time
to prepare for trial is addressed to the sound discretion of the trial court, and we will
not reverse the trial court’s refusal to order a continuance absent a clear showing of
abuse of that discretion. White v. State, 304 Ga. App. 158, 159 (2) (695 SE2d 425)
(2010); Miller v. State, 303 Ga. App. 422, 423 (693 SE2d 637) (2010); McIntyre v.
State, 302 Ga. App. 778, 780-781 (2) (691 SE2d 663) (2010); Anthony v. State, 276
Ga. App. 107, 108-109 (2) (622 SE2d 450) (2005). We find no such abuse here.
Eason’s trial attorney, Ronnie Knighton, informed the trial court that despite Eason’s
request for more time to prepare, he was ready to go to trial. The facts surrounding
6 the charges against Eason were neither complex nor convoluted, and the evidence
was entirely testimonial in nature, the substance of which was contained in the
witnesses’ statements Eason’s trial counsel obtained during reciprocal discovery.
Additionally, on appeal, Eason has not pointed to any specific defense or evidence
that might have been raised if he and his counsel had been given more time to prepare
his defense. Miller, 303 Ga. App. at 424 (“To show harm [the accused] was required
to specifically identify what other evidence or witnesses he would have put forth in
his defense if his counsel had been given more time to prepare; speculation and
conjecture are not enough.”) (citation and punctuation omitted). And although Eason
testified at the motion for new trial hearing that he needed the extra time to confer
with his attorney about certain evidentiary matters, he admitted that he did not apprise
his attorney of these alleged points of defense when he and his counsel were given
the opportunity to meet before trial. Under these circumstances, Eason has failed to
show error entitling him to a new trial. Id.
2. Eason also argues that the trial court erred by allowing Detective Thorp to
testify concerning his in-custody statement because it should have been clear to the
Detective that Eason was holding out some hope of benefit when Eason stated during
the interview “I need your help.” Detective Thorp testified at the Jackson-Denno
7 hearing that he responded to this statement by explaining that he was not in a position
to offer him any sort of deal, and that all he wanted was for Eason to tell him the
truth. He also told Eason that whether he cooperated or not, he would pass along
whatever information he obtained from Eason during the interview to the district
attorney’s office or the trial court.
“To make a confession admissible, it shall have been made voluntarily, without
being induced by another by the slightest hope of benefit or remotest fear of injury.”
OCGA § 24-8-824.7 Generally, the promise of a benefit that renders a confession
involuntary under this code section means a reduced charge or sentence. Rivers v.
State, ___ Ga. ___ (3) (Case No. S14A1411, decided January 20, 2015); Johnson v.
State, 295 Ga. 421, 422 (2) (761 SE2d 13) 92014); Vergara v. State, 283 Ga. 175, 181
(1) (657 SE2d 863) (2008); Preston v. State, 282 Ga. 210, 211 (2) (647 SE2d 260)
(2007); Edwards v. State, 312 Ga. App. 141, 145 (3) (717 SE2d 722) (2011). Clearly,
an investigator does not make an offer of hope of benefit simply by telling a
defendant that he will make the prosecutor aware of his or her cooperation. Edwards,
312 Ga. App. at 146 (3). And the fact that Eason may have hoped the police would
7 This case was tried in September 2013, after the effective date of the new Evidence Code. This language was formerly codified at OCGA § 24-3-50.
8 offer him something more if he confessed did not render the statement inadmissible.
Williams v. State, 250 Ga. 553, 559 (1) (300 SE2d 301) (1983) (where the hope or
fear is the product of defendant’s own mind, rather than the result of inducement by
others, the statement is admissible).
3. Eason argues that the trial court erred by not allowing his trial counsel to
conduct individual voir dire of potential jurors on two panels. But this contention
does not accurately reflect what took place in the trial court. Although voir dire was
not transcribed,8 the trial court’s instructions to counsel concerning how voir dire
would be conducted were recorded and have been made a part of the record on
appeal. The trial court explained that general voir dire questions would be posed to
all potential jurors, and then counsel would have an opportunity to individually
question each potential juror. The trial court requested that counsel pose as many
general questions as possible to avoid individual questioning on matters that could
be asked of all prospective jurors at the same time, and after the first panel was
questioned, the trial court reiterated his instructions to Eason’s counsel and gave him
examples of the type of questions that could be posed as general questions. Thus, the
8 Eason’s trial attorney agreed with the trial court that it was not necessary for the entire voir dire to be taken down, but requested that the court reporter remain on standby to take down any objections that might arise during voir dire.
9 trial court did not, as Eason contends on appeal, “disallow” his trial counsel the
opportunity to individually question some of the potential jurors. Rather, the trial
court simply requested that counsel ask as many questions as possible as general
questions before moving on to individually questioning prospective jurors.
Moreover, our appellate courts previously have found this procedure
permissible. Walker v. State, 271 Ga. 328, 329 (2) (519 SE2d 670) (1999) (a trial
court is permitted to require that general questions be addressed to the entire panel
rather than allowing each juror to be questioned seriatim); State v. Hutter, 251 Ga.
615, 616 (307 SE2d 910) (1983) (no error where counsel simply denied opportunity
to ask question seriatim to each juror, but instead was required to address the question
to the panel as a whole in a way that would ensure an individual response from
potential jurors); see also Uniform Superior Court Rule 10.1. Eason has failed to
show that the trial court abused its discretion by refusing to allow his counsel to pose
each voir dire question individually to potential jurors when the trial court also
permitted the parties to individually examine each juror.
4. Lastly, we consider Eason’s claims that his trial counsel was ineffective. We
start with the well-known standard that applies to this claim.
10 To prevail on a claim of ineffective assistance, [an accused] must prove both that the performance of his lawyer was deficient and that [this deficiency] prejudiced [his or her defense]. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [an accused] must prove that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrision, 477 U.S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance, [an accused] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 (III) (B).
Jones v. State, 292 Ga. 593, 599 (7) (740 SE2d 147) (2013). Although “[t]his does not
require a showing that counsel’s actions more likely than not altered the outcome, .
. . the difference between Strickland’s prejudice standard and a more-probable-than-
not standard is slight and matters only in the rarest case. The likelihood of a different
result must be substantial, not just conceivable.” (Citations and punctuation omitted.)
Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012), citing Harrinton v.
Richter, [562 U.S. 86, 111-112] (IV) (B) (131 SCt 770, 178 LE2d 624) (2011). The
11 burden to prove an ineffectiveness claim, although not impossible to carry, is a heavy
one. Jones, 292 Ga. at 599 (7).
With these tenets in mind, we turn to Eason’s specific claims of
ineffectiveness.
(a) Eason argues that his trial counsel was ineffective because he failed to
adequately prepare for trial. Eason’s trial attorney testified at the motion for new trial
hearing that he had been admitted to practice law in 1971, and that since that time he
had tried approximately 500 cases. Counsel testified his practice had always consisted
of at least half criminal defense work, but in the last 12 to 15 years, criminal defense
work had comprised approximately 90 percent of his practice.
Trial counsel testified that he met with Eason between five and ten times before
trial, that he received and reviewed the statements of the eyewitnesses and the co-
defendants through reciprocal discovery with the State, and that he went over those
statements with Eason before trial. He explained that he did not believe it was
necessary to interview the witnesses from Waffle House, especially since none of
them could identity Eason, although as was his custom he conducted his own
investigation and went to the Waffle House so he could get a feel for the scene. Trial
counsel testified that Eason told him from the beginning that he was involved in the
12 robbery, and that in his opinion, which he shared with Eason, the State’s evidence
was “pretty well” overwhelming, and did not leave them with any real defense. He
said he explained to Eason his firm belief that Eason’s best option was to secure a
plea deal from the State and that he practically begged him to take the State’s plea
deal, but Eason wanted a better deal so he turned down the State’s offer.
Although Eason argues on appeal that his counsel should have interviewed the
witnesses, hired an investigator, checked to see if the witnesses had a criminal history
and subpoenaed any videotapes from the Waffle House, the only effect he points to
from these failures is that there is “some probability” that the outcome of the trial
would have been different if these steps had been taken. But such a conclusory
statement is not sufficient to support a claim that without counsel’s alleged
shortcomings, there is a reasonable probability that the outcome of trial would have
been different. This enumeration thus presents no basis for reversal. Kilby v. State,
289 Ga. App. 457, 460 (3) (657 SE2d 567) (2008).
(b) Eason also argues that his trial counsel should have questioned Detective
Thorp during the Jackson-Denno hearing concerning what he told Eason about his
possible sentence. Although Eason does not contend that Detective Thorp
misinformed him about his sentence, he argues that the trial court “could have made”
13 a different ruling on the admissibility of the statement if the trial court had known that
Detective Thorp failed to tell Eason that he was facing the possibility of a life
sentence.
Trial counsel testified at the motion for new trial hearing that he listened to the
recording of the interview prior to the Jackson-Denno hearing and that he did not
recall hearing Eason ask Detective Thorp how much time he was potentially facing
if he was charged with armed robbery.9 Further, trial counsel testified that he listened
to the recording with a view toward finding something that could be used to show that
Eason had been made promises or been given some hope of benefit if he confessed,
but that he did not recall hearing anything on the recording which would have
provided a basis for such an argument. Accordingly, since counsel was unable to
recall anything specific about the exchange in question and could not recall that he
heard anything on the tape that he thought would be helpful, we must presume that
trial counsel made a strategic decision not to question Detective Thorp concerning his
exchange with Eason about possible sentences. See Brown v. State, 288 Ga. 902, 908-
909 (5) (708 SE2d 294) (2011) (“‘strong presumption’ that counsel’s attention to
9 We again note that the recording was of poor quality and that it was not played at trial for this reason, among others.
14 certain issues to the exclusion of others reflects trial tactics”). And because Eason
does nothing more than speculate on appeal that the trial court “could have made” a
different determination if trial counsel had brought this exchange to light, he has
failed to make the necessary showing that counsel’s decision was so “patently
unreasonable that no competent attorney would have chosen it.” (Citation and
punctuation omitted.) Brown, 288 Ga. at 909. See White, 304 Ga. App. at 160-161 (4).
(c) Eason next argues that his trial counsel rendered ineffective assistance by
failing to select a proper jury. The record shows that trial counsel testified at the
motion for new trial hearing that he had written down the wrong numbers on the
“strike sheet” for panel two, and as a result some of the jurors that ended up serving
on the panel were not the ones he selected. Although Eason argues this alone shows
that his counsel performed deficiently, he makes absolutely no assertion or showing
concerning how he was prejudiced by counsel’s mistake. Eason has not attempted to
identify which jurors erroneously served on the jury, has not raised even the slightest
possibility that the jurors were not qualified, and has not made any showing that any
of the jurors who served harbored any prejudice towards him or were disinclined to
acquit him based on reasons other than the evidence presented at trial. Accordingly,
even assuming deficient performance, reversal is not required because Eason has not
15 affirmatively shown he was prejudiced by counsel’s mistake. E.g., O’Brien v. State,
242 Ga. App. 344, 346-347 (2) (529 SE2d 657) (2000) (ineffectiveness claim fails
where defendant failed to show “flip-flopping” juror’s names resulted in prejudice);
Shields v. State, 307 Ga. App. 830, 834 (706 SE2d 187) (2011) (showing of actual
prejudice necessary to find counsel was ineffective based on misunderstanding
concerning number of peremptory challenges).
(d) Eason contends that his trial counsel was ineffective because he failed to
object to questions and testimony that he contends amounted to an improper comment
on his right to remain silent. The comments and questions Eason points to as
objectionable occurred during the State’s examination of Detective Thorp concerning
his interview with Eason. Specifically, Eason contends that his trial counsel should
have objected when the prosecuting attorney asked Detective Thorp whether Eason
denied if there was a gun present, when he asked Detective Thorp if Eason denied
being in the Waffle House, and when he asked Detective Thorp if Eason denied that
was the mask he had been wearing.10
10 The transcript from the motion for new trial hearing discloses that trial counsel was only asked about his failure to object to the testimony about Eason’s failure to deny there was a gun or that he was in the Waffle House. However, we need not differentiate these statements for purposes of our analysis since none of them were objectionable for the reasons set out above.
16 This claim of ineffectiveness is also without merit. Eason was under arrest and
had been given Miranda warnings when he agreed to speak to the investigator, and
there is no contention that he entered the interview with the understanding that he
would not answer certain questions or that certain topics were off limits. Further,
although Detective Thorp testified at the Jackson-Denno hearing that Eason may have
failed to answer several questions, he also said that he never refused to answer any
questions, never said he wanted to stop the interview, and never indicated he did not
want to answer any additional questions without an attorney being present.
Accordingly, since Eason did not invoke his right to remain silent during the
interview, the testimony regarding failure to respond to particular questions or to
interject denials during the interview was admissible. Curry v. State, 291 Ga. 446,
451 (3) (729 SE2d 370) (2012) (defendant did not invoke right to remain silent during
interview and thus testimony regarding his failure to respond to particular questions
was admissible); Shaburov v. State, 324 Ga. App. 743, 747 (1) (751 SE2d 540)
(2013) (“since [defendant] spoke with police without ever invoking his right to
remain silent, the prosecutor’s line of questioning . . . did not constitute impermissible
commentary on appellant’s right to remain silent.”). “Because the trial court would
not have been required to sustain objections to the testimony and arguments about
17 which Appellant complains, the failure of his lawyer to make such objections does
not show that Appellant was denied the effective assistance of counsel.” Yancey v.
State, 292 Ga. 812, 819 (4) (740 SE2d 628) (2013).
(e) Lastly, Eason contends that his trial counsel was ineffective because he
failed to properly advise him on recidivist sentencing, and argues that had his counsel
given him proper information, he could have a “true opportunity” to knowingly and
voluntarily accept or reject the State’s plea offer. This contention, however, is belied
by the record. Trial counsel testified that after he received notice that the State sought
to sentence Eason as a recidivist, he specifically advised Eason that he could be
facing a life sentence and that when Eason would not accept the State’s plea deal
despite the seemingly overwhelming evidence against him, he had Eason brought to
court so that the trial judge could explain to Eason that if he was found guilty he
would have no other choice but to sentence him to life. After the trial court explained
the sentencing, Eason had until 9:00 a.m. the following morning to accept or reject
the offer, and counsel testified he met with Eason at 8:30 a.m. to go over the offer
again. Although Eason testified at the motion for new trial hearing that he could not
recall if trial counsel told him he was facing a mandatory, as opposed to a possible,
life sentence, the trial court explained to him that he was facing a mandatory life
18 sentence before he finally rejected the plea offer. Accordingly, Eason has wholly
failed to establish that his trial counsel rendered deficient performance in regards to
his sentencing or the State’s plea offer. And because all of Eason’s ineffectiveness
claims fail, he is not entitled to a new trial on this basis.
Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.