FOURTH DIVISION DILLARD, C. J., DOYLE, P. J., and MERCIER, 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
February 28, 2019
In the Court of Appeals of Georgia A18A1924. STRICKLAND v. THE STATE. DO-061C
DOYLE, Presiding Judge.
After a jury trial, Kenneth Strickland was convicted of robbery by force,1
burglary,2 aggravated battery,3 two counts of false imprisonment,4 and theft by
taking.5 After his trial in 2009, Strickland filed a motion for new trial, which was later
amended in 2010, 2013, and 2014. A motion for new trial hearing eventually was held
in 2014, and the trial court denied the motion four years later in 2018. Strickland now
1 OCGA § 16-8-40 (a) (1). 2 OCGA § 16-7-1 (b). 3 OCGA § 16-5-24 (a). 4 OCGA § 16-5-41 (a). 5 OCGA § 16-8-2. The jury acquitted Strickland of aggravated assault and theft by receiving stolen property. appeals, arguing that (1) the evidence was insufficient to support his conviction, and
(2) trial counsel, who later was disbarred, was ineffective. For the reasons that follow,
we affirm.
Viewed in favor of the verdict,6 the record shows that on the morning of May
17, 2008, an individual rang the doorbell at the home of 92-year-old Henry Wood.
Seventy-two-year old Dereda Taylor, Wood’s live-in care-giver, looked out the front
window, but did not see anyone at the door; at some point later, she opened the front
door to get the newspaper, and an intruder pushed his way into Wood’s home,
accosting her. The intruder tied up Taylor, demanded money, and asked the location
of her room and of “pops’s” room. Wood, who died before trial, came out of his
bedroom and was assaulted by the intruder; at trial, the parties stipulated that Wood
sustained a broken jaw during the incident. After tying up Wood and ransacking the
house, the intruder left the home with a 27-inch television, $125 in cash, and Taylor’s
Ford Explorer.
6 See Haslam v. State, 341 Ga. App. 330, 331 (801 SE2d 61) (2017).
2 Taylor called 911 and described to police that the intruder wore a cap and had
his face covered with a hand towel7 so that she could only see his eyes. Taylor was
not able to identify a suspect from a photographic lineup. At trial, Taylor testified that
Strickland’s general size and complexion were the same as the robber, but she
testified on cross-examination that the intruder was about five feet five inches tall.
Taylor denied that a wash cloth entered into evidence by the State was the same one
used by the intruder.
A manager of a pawn shop near Wood’s home testified that Strickland
frequently pawned items at that location; based on a pawn ticket issued on the
morning of the incident, Strickland came in to the store to pawn a television fitting
the description, including the serial number, of the one taken from Wood. The
manager testified that Strickland never had pawned any other stolen property at that
location, and his height listed in their database was five feet nine inches, which was
based on the information on his state identification.
The day of the incident, police found Taylor’s stolen Ford Explorer in the
parking lot across from the pawn shop with the key in the ignition and the engine
7 Taylor described a hand towel as being one size larger than a wash cloth and smaller than a bath towel.
3 running. Strickland was arrested at the same pawn shop six days later when the clerk
notified the police that he was back at the shop. The manager admitted on cross-
examination that although the police could have gotten copies of surveillance video
from the shop from the morning of the incident, they failed to do so.
After taking Strickland into custody at the pawn shop, the investigator advised
him of his Miranda rights and interviewed him. At first, Strickland denied being at
the pawn shop on the date of the incident, and then he admitted he had pawned a
television, which he said he had gotten from a person named Harold, who gave him
money in exchange for pawning the item. Strickland told the officer that he met
Harold in the parking lot across from the pawn shop, that Harold was driving a gray
Jeep, and that he did not know Harold’s last name or where he lived.
Thereafter, the jury returned a guilty verdict against Strickland, acquitting him
of theft by receiving stolen property.
1. Strickland argues that the evidence was insufficient to support the verdict
because Taylor’s testimony regarding the appearance of the intruder differed from his
physical appearance and no other evidence tied him to the scene of the home invasion
other than pawning stolen property, which did not establish that he committed the
other crimes. Although it is true that Taylor could not provide much testimony about
4 the intruder’s physical appearance, and she was unable to identify his photograph
from a lineup, there was sufficient circumstantial evidence upon which the jury could
conclude that Strickland committed the home invasion and crimes during the
invasion, rather than merely pawning the television for a man named Harold.
Once it is shown that goods were stolen in a [robbery or burglary], absence of or unsatisfactory explanation of the possession of the goods will support a conviction for [those crimes] based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.8
The jury heard the weaknesses of the State’s case against Strickland, including
the lack of any solid testimony about the intruder’s appearance, but it was for the jury
to weigh that evidence against other evidence presented by the State: the geographic
proximity of Strickland’s home to the crime and the pawn shop, the temporal
proximity of Strickland’s visit to the pawn shop after the intrusion, the state of
Taylor’s vehicle abandoned and left running across from the pawn shop in the
location where Strickland said he met Harold, Strickland’s initial denial of pawning
8 (Punctuation omitted.) High v. State, 282 Ga. 244 (1) (647 SE2d 270) (2007), quoting Berry v. State, 274 Ga. App. 366, 369 (1) (618 SE2d 72) (2005).
5 a television on the day in question, and the lack of evidence about Harold’s identity.9
Indeed, it is clear from the jury’s acquittal of Strickland for theft by receiving stolen
property and aggravated assault that the jury carefully weighed the State’s evidence
and applied the correct standard. Accordingly, this enumeration is without merit
because the evidence as detailed above was sufficient for a rational trier of fact to find
Strickland guilty of the charged crimes.10
2. Strickland enumerates several failures of his trial counsel to provide
effective assistance of counsel.
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DILLARD, C. J., DOYLE, P. J., and MERCIER, 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
February 28, 2019
In the Court of Appeals of Georgia A18A1924. STRICKLAND v. THE STATE. DO-061C
DOYLE, Presiding Judge.
After a jury trial, Kenneth Strickland was convicted of robbery by force,1
burglary,2 aggravated battery,3 two counts of false imprisonment,4 and theft by
taking.5 After his trial in 2009, Strickland filed a motion for new trial, which was later
amended in 2010, 2013, and 2014. A motion for new trial hearing eventually was held
in 2014, and the trial court denied the motion four years later in 2018. Strickland now
1 OCGA § 16-8-40 (a) (1). 2 OCGA § 16-7-1 (b). 3 OCGA § 16-5-24 (a). 4 OCGA § 16-5-41 (a). 5 OCGA § 16-8-2. The jury acquitted Strickland of aggravated assault and theft by receiving stolen property. appeals, arguing that (1) the evidence was insufficient to support his conviction, and
(2) trial counsel, who later was disbarred, was ineffective. For the reasons that follow,
we affirm.
Viewed in favor of the verdict,6 the record shows that on the morning of May
17, 2008, an individual rang the doorbell at the home of 92-year-old Henry Wood.
Seventy-two-year old Dereda Taylor, Wood’s live-in care-giver, looked out the front
window, but did not see anyone at the door; at some point later, she opened the front
door to get the newspaper, and an intruder pushed his way into Wood’s home,
accosting her. The intruder tied up Taylor, demanded money, and asked the location
of her room and of “pops’s” room. Wood, who died before trial, came out of his
bedroom and was assaulted by the intruder; at trial, the parties stipulated that Wood
sustained a broken jaw during the incident. After tying up Wood and ransacking the
house, the intruder left the home with a 27-inch television, $125 in cash, and Taylor’s
Ford Explorer.
6 See Haslam v. State, 341 Ga. App. 330, 331 (801 SE2d 61) (2017).
2 Taylor called 911 and described to police that the intruder wore a cap and had
his face covered with a hand towel7 so that she could only see his eyes. Taylor was
not able to identify a suspect from a photographic lineup. At trial, Taylor testified that
Strickland’s general size and complexion were the same as the robber, but she
testified on cross-examination that the intruder was about five feet five inches tall.
Taylor denied that a wash cloth entered into evidence by the State was the same one
used by the intruder.
A manager of a pawn shop near Wood’s home testified that Strickland
frequently pawned items at that location; based on a pawn ticket issued on the
morning of the incident, Strickland came in to the store to pawn a television fitting
the description, including the serial number, of the one taken from Wood. The
manager testified that Strickland never had pawned any other stolen property at that
location, and his height listed in their database was five feet nine inches, which was
based on the information on his state identification.
The day of the incident, police found Taylor’s stolen Ford Explorer in the
parking lot across from the pawn shop with the key in the ignition and the engine
7 Taylor described a hand towel as being one size larger than a wash cloth and smaller than a bath towel.
3 running. Strickland was arrested at the same pawn shop six days later when the clerk
notified the police that he was back at the shop. The manager admitted on cross-
examination that although the police could have gotten copies of surveillance video
from the shop from the morning of the incident, they failed to do so.
After taking Strickland into custody at the pawn shop, the investigator advised
him of his Miranda rights and interviewed him. At first, Strickland denied being at
the pawn shop on the date of the incident, and then he admitted he had pawned a
television, which he said he had gotten from a person named Harold, who gave him
money in exchange for pawning the item. Strickland told the officer that he met
Harold in the parking lot across from the pawn shop, that Harold was driving a gray
Jeep, and that he did not know Harold’s last name or where he lived.
Thereafter, the jury returned a guilty verdict against Strickland, acquitting him
of theft by receiving stolen property.
1. Strickland argues that the evidence was insufficient to support the verdict
because Taylor’s testimony regarding the appearance of the intruder differed from his
physical appearance and no other evidence tied him to the scene of the home invasion
other than pawning stolen property, which did not establish that he committed the
other crimes. Although it is true that Taylor could not provide much testimony about
4 the intruder’s physical appearance, and she was unable to identify his photograph
from a lineup, there was sufficient circumstantial evidence upon which the jury could
conclude that Strickland committed the home invasion and crimes during the
invasion, rather than merely pawning the television for a man named Harold.
Once it is shown that goods were stolen in a [robbery or burglary], absence of or unsatisfactory explanation of the possession of the goods will support a conviction for [those crimes] based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.8
The jury heard the weaknesses of the State’s case against Strickland, including
the lack of any solid testimony about the intruder’s appearance, but it was for the jury
to weigh that evidence against other evidence presented by the State: the geographic
proximity of Strickland’s home to the crime and the pawn shop, the temporal
proximity of Strickland’s visit to the pawn shop after the intrusion, the state of
Taylor’s vehicle abandoned and left running across from the pawn shop in the
location where Strickland said he met Harold, Strickland’s initial denial of pawning
8 (Punctuation omitted.) High v. State, 282 Ga. 244 (1) (647 SE2d 270) (2007), quoting Berry v. State, 274 Ga. App. 366, 369 (1) (618 SE2d 72) (2005).
5 a television on the day in question, and the lack of evidence about Harold’s identity.9
Indeed, it is clear from the jury’s acquittal of Strickland for theft by receiving stolen
property and aggravated assault that the jury carefully weighed the State’s evidence
and applied the correct standard. Accordingly, this enumeration is without merit
because the evidence as detailed above was sufficient for a rational trier of fact to find
Strickland guilty of the charged crimes.10
2. Strickland enumerates several failures of his trial counsel to provide
effective assistance of counsel.
To prevail on a claim of ineffective assistance, [Strickland] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. To show that the performance of his lawyer was deficient, [Strickland] must prove that his
9 See Riles v. State, 321 Ga. App. 894, 895-897 (1) (743 SE2d 552) (2013) (“Questions about the reasonableness of hypotheses are generally for the jury’s determination, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, this Court does not disturb such finding unless the verdict of guilty is insupportable as a matter of law.”) (punctuation omitted). 10 See High, 282 Ga. at 244-245 (1) (burglary); Ayers v. State, 286 Ga. App. 898, 901 (1) (c) (650 SE2d 370) (2007) (false imprisonment); Johnson v. State, 260 Ga. App. 413, 415-416 (1) (579 SE2d 809) (2003) (aggravated battery based on broken wrist and broken nose); Watson v. State, 214 Ga. App. 650, 651 (2) (448 SE2d 718) (1994) (robbery by force); Brown v. State, 157 Ga. App. 473, 474-475 (1) (278 SE2d 31) (1981) (theft by taking).
6 lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to show that he was prejudiced by the performance of his lawyer, [Strickland] 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. This burden, though not impossible to carry, is a heavy one.11
(a) Strickland argues that trial counsel was ineffective for failing to object to
Taylor’s testimony about statements made by Wood, who died prior to trial, regarding
Wood’s injury. Strickland also argues that trial counsel was ineffective for failing to
object to the investigator’s testimony about Wood’s statements regarding his injuries.
Pretermitting whether Taylor’s testimony about Wood, which largely was
based on her own observation of him, would have been admitted as non-hearsay,
Strickland has not shown that trial counsel was ineffective. At the motion for new
trial hearing, trial counsel did not believe that the hearsay testimony negatively
affected his theory of the case — that another individual committed the invasion,
robbery, and assaults, and Strickland merely pawned the television after receiving it
11 (Citations and punctuation omitted.) Bradley v. State, 292 Ga. 607, 613-614 (5) (740 SE2d 100) (2013), citing Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).
7 from that person. In support of this strategy, trial counsel stipulated to Wood’s injury
prior to trial. Trial counsel did not believe that objecting to any such hearsay was
beneficial, instead drawing out the lack of identity evidence. In other instances, trial
counsel objected when the State failed to lay proper foundation for admitting
evidence, for leading the witness regarding her identification of the intruder, and to
prevent the State from entering a similar transaction into evidence. Moreover, trial
counsel illustrated through cross-examination the weaknesses in the State’s case, such
as the difference between the hand towel Taylor saw on the intruder and the wash
cloth recovered by police. Finally, trial counsel objected prior to the investigator’s
testimony to prevent the State from offering hearsay testimony by Wood, and the trial
court agreed that it should be kept to a minimum. We cannot say that trial counsel’s
strategy was unreasonable and, therefore, the trial court did not err by finding that
counsel was not ineffective for failing to object to Taylor’s or the investigator’s
hearsay testimony about Wood’s injury.12
12 See Bradley, 292 Ga. at 615 (5). See also Reid v. State, 235 Ga. 378, 379 (1) (219 SE2d 740) (1975) (“Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf. . . . The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should
8 (b) Strickland argues that trial counsel was ineffective for failing to object
when the investigator testified that he stated “I don’t think you’re being honest with
me” to Strickland during the interview. Strickland argues that this was an
impermissible comment on character, and trial counsel should have objected. The
State does not address this argument in their brief; however, our review establishes
that failure to object to this was not deficient performance.
“[A] witness, even an expert, can never bolster the credibility of another
witness as to whether the witness is telling the truth. And, Georgia law generally
precludes a witness from testifying as to his or her opinion regarding an ultimate issue
in the case because to do so would invade the province of the jury.”13 Frequently,
however, courts have distinguished between “interrogation comments” and “sworn
testimony” when reviewing whether such comments invade the province of the jury.14
be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.”). 13 (Citations and punctuation omitted.) Windholm v. State, 315 Ga. App. 855, 858-859 (2) (729 SE2d 25) (2012). 14 Id. at 859 (2). See also Hames v. State, 278 Ga. 182, 184 (3) (598 SE2d 459) (2004); Rowe v. State, 276 Ga. 800, 803 (2) (582 SE2d 119) (2003); Axelburg v. State, 294 Ga. App. 612, 616 (2) (669 SE2d 439) (2008).
9 Here, the comment was a passing reference by the investigator at the end of
the narrative about his interrogation of Strickland. Although it was not a video or
audio recording of the interrogation, the testimony was presented in a way that clearly
indicated it was part of an interrogation rather than a testimonial opinion by the
investigator at trial. Pretermitting whether the statement was prejudicial,15
[i]n assessing the performance of [Strickland’s] lawyer, we must remember that there are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. We think that some reasonable lawyer might not have objected to this testimony for sound strategic reasons [such as not calling further attention to the passing limited reference to honesty], and for this reason, [Strickland] cannot show that his lawyer performed in an objectively unreasonable way.16
Accordingly, the trial court did not err by denying the motion for new trial on this
basis.
(c) Trial counsel failed to object when an investigator testified that Strickland
invoked his right to remain silent and ended his interview with the investigator, which
15 Compare with Windholm, 315 Ga. App. at 860 (2). 16 (Citations and punctuation omitted.) Shields v. State, 307 Ga. App. 830, 838 (2) (706 SE2d 187) (2011). See also Reid, 235 Ga. at 379 (1).
10 was an impermissible comment on his right to remain silent.17 Nevertheless, the
transcript establishes that the investigator’s comments were a conclusion to his
description of the interview, which the Georgia Supreme Court has established is not
probative on the guilt or innocence of the defendant and is therefore not prejudicial.18
Accordingly, the trial court did not err by denying the motion for new trial on this
(d) Finally, Strickland contends that trial counsel was ineffective because he
failed to question thoroughly the prospective jurors during voir dire.
At the hearing on the motion for new trial, trial counsel testified that he
generally did not ask a lot of voir dire questions of jurors because he did not like
being redundant to the court and the State. Trial counsel did not like to “hound” the
potential jurors, and he did not want to draw out the heinous nature of the home
invasion because of his theory that Strickland did not commit the home invasion or
17 See Doyle v. Ohio, 426 U. S. 610 (96 SCt 2240, 49 LE2d 91) (1976). 18 See Cape v. State, 246 Ga. 520, 523 (2) (272 SE2d 487) (1980) (explaining that “[t]o reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.”). Compare Reynolds v. State, 285 Ga. 70, 71-72 (673 SE2d 854) (2009) (holding prejudicial the prosecutor’s statement that the jury should consider that the defendant did not attempt to talk to police about his version of a domestic incident).
11 assaults. Additionally, he did not want to plant the idea that pawning items was a
negative behavior because Strickland frequently pawned non-stolen items.
A juror who is a victim of the same type of crime as the incident being tried is
not necessarily a basis upon which to disqualify the juror if “nothing in the voir dire
transcript indicates that the prospective juror’s opinion [is] so fixed and definite that
the juror [would not be able] to set the opinion aside and decide the case based upon
the evidence and the court’s instructions.”19 Strickland has failed to show that
counsel’s performance in this instance was deficient. The transcript of voir dire does
not show that any of the jurors could not put aside their own experiences and fairly
weigh the evidence.20 Strickland also has failed to establish that any of the jurors
actually seated held a bias against him or that trial counsel should have attempted to
have a specific juror struck for impartiality. Moreover, we see nothing in the record
to indicate that trial counsel’s overall performance during voir dire was deficient.21
19 (Punctuation omitted.) Garrett v. State, 280 Ga. 30, 31 (2) (622 SE2d 323) (2008), quoting Head v. State, 276 Ga. 131, 133 (2) (575 SE2d 883) (2003). See also Reid, 235 Ga. at 379 (1). 20 See Garrett, 280 Ga. at 31 (2). 21 See Reid, 235 Ga. at 379 (1).
12 Accordingly, the trial court did not err by denying the motion for new trial on this
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.