THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
May 21, 2015
In the Court of Appeals of Georgia A15A0701. BROOKS v. THE STATE. A15A0702. JONES v. THE STATE.
MCFADDEN, Judge.
After a joint jury trial, Kevin Dale Brooks was convicted of armed robbery,
burglary, aggravated assault, two counts of false imprisonment, and possession of
cocaine, and Brian Jones was convicted of armed robbery, burglary, aggravated
assault, two counts of false imprisonment, and theft by taking. The trial court denied
the appellants’ motions for new trial, and they filed these appeals, which we review
together.
Brooks argues that the evidence does not support the convictions, but we find
that the evidence was sufficient. Brooks also argues that his convictions must be
reversed because certain witnesses perjured themselves, but he has failed to show perjury. Brooks further argues that his convictions must be reversed because after his
trial, one of the police officers who testified against him was convicted of making
false statements, but the officer’s conviction was not in any way related to her
testimony at Brooks’s trial. Jones argues that his convictions must be reversed
because the indictment on which they are based is void, but Jones waived this
argument by failing to timely raise it. Jones also argues that the trial court erred by
denying his motion for mistrial, but we find that the court did not abuse his discretion
in admonishing the prosecutor rather than granting a mistrial. Jones further argues
that the trial court should have granted his motion to sever, but we find that the trial
court did not abuse his discretion in denying the motion. Both defendants argue that
they received ineffective assistance of counsel, but we find that neither has shown
both harm and prejudice. We therefore affirm the convictions.
1. Sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal conviction, “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.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
2 emphasis in original). It is the function of the jury, not the reviewing court, to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the evidence. Id. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
Viewed in this light, the evidence shows that when the victim pulled into his
driveway after being out for the evening, Brooks and Jones, who were armed,
approached him from the side of the house. The men said, “You know what this is.”
The victim, Brooks, and Jones entered the victim’s house, and the men demanded
money, drugs, and jewelry. The men began searching the victim’s house and took his
jewelry and phone. Jones went into a bedroom where the victim’s 12-year-old son
was sleeping. The boy woke up, and Jones threatened him with a pistol and took his
phone. Jones kept the boy in his bedroom through the night. The boy heard another
man demanding money, jewelry, and drugs from his father.
The next morning, in order to get the men to leave, the victim told them that
he could withdraw money for them from his credit union account. Brooks and the
victim drove in the victim’s car to downtown Savannah and Jones stayed with the
3 victim’s son at the house. The victim drove through the city, hoping to encounter a
police officer, while Brooks kept him at gunpoint. The victim saw a police officer and
began driving toward her to get her attention. The officer pulled her weapon. The
victim jumped out of the rolling car, threw up his hands, and said, “They got a gun!”
The car crashed into a building and Brooks fled. The victim told the officer that his
son was being held captive at his house. She called for assistance. Officers then saw
Brooks enter the back door of a restaurant. The SWAT team found Brooks hiding
behind a file cabinet in the restaurant’s office. When an officer patted down Brooks,
he found in Brooks’s pocket a Crown Royal bag containing 10.5 grams of cocaine
and the victim’s jewelry.
In the meantime, police arrived at the victim’s house. Jones hid in the attic. The
boy exited the house, and the police took him to the station, where he was reunited
with his father. Eventually Jones exited the house, got into the victim’s girlfriend’s
car, backed it out, and fled. The street was a dead-end, and Jones crashed the car into
some trees. He exited the car and fled on foot. He was eventually caught in the
woods.
We conclude that the evidence adduced at trial was sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Brooks and Jones were
4 guilty of the crimes of which they were convicted. Jackson, supra, 443 U. S. at 319
(III) (B).
2. The indictment.
Jones argues that his convictions must be reversed because the indictment
under which he was charged was void, as one of the grand jurors who returned the
indictment was a convicted felon. By failing to timely raise it, Jones has waived this
attack on the indictment.
Under OCGA § 15-12-60 (c), “Any person who has been convicted of a felony
in a state or federal court who has not had his or her civil rights restored . . . shall not
be eligible to serve as a grand juror.” But “to be cognizable, most attacks on an
indictment, including a challenge to the composition of the grand jury that returned
it, must be brought within ten days of arraignment, unless the trial court extends that
deadline.” Bighams v. State, 296 Ga. 267, 269 (2) (765 SE2d 917) (2014) (citations
and footnote omitted) (rejecting as untimely appellants’ challenge to indictment that
was allegedly void because of composition of the grand jury). See also Hill v.
Stynchcombe, 225 Ga. 122, 127 (10) (166 SE2d 729) (1969) (challenges to
composition of grand jury must be made within specified time or are waived);
Lumpkin v. State, 152 Ga. 229, 231 (109 SE 664) (1921) (challenge to grand jury
5 based on service of disqualified person must be made within specified time frame,
and “cannot be raised for the first time after verdict”).
Jones argues that he did not waive his attack on the indictment because the
indictment was void, which rendered the judgment of conviction void, and a void
judgment may be attacked at any time. Jones has cited no authority to support his
assertion that a judgment of conviction entered upon an indictment that is allegedly
void due to composition of the grand jury is itself void. But in Garza v. State, 325 Ga.
App.
Free access — add to your briefcase to read the full text and ask questions with AI
THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
May 21, 2015
In the Court of Appeals of Georgia A15A0701. BROOKS v. THE STATE. A15A0702. JONES v. THE STATE.
MCFADDEN, Judge.
After a joint jury trial, Kevin Dale Brooks was convicted of armed robbery,
burglary, aggravated assault, two counts of false imprisonment, and possession of
cocaine, and Brian Jones was convicted of armed robbery, burglary, aggravated
assault, two counts of false imprisonment, and theft by taking. The trial court denied
the appellants’ motions for new trial, and they filed these appeals, which we review
together.
Brooks argues that the evidence does not support the convictions, but we find
that the evidence was sufficient. Brooks also argues that his convictions must be
reversed because certain witnesses perjured themselves, but he has failed to show perjury. Brooks further argues that his convictions must be reversed because after his
trial, one of the police officers who testified against him was convicted of making
false statements, but the officer’s conviction was not in any way related to her
testimony at Brooks’s trial. Jones argues that his convictions must be reversed
because the indictment on which they are based is void, but Jones waived this
argument by failing to timely raise it. Jones also argues that the trial court erred by
denying his motion for mistrial, but we find that the court did not abuse his discretion
in admonishing the prosecutor rather than granting a mistrial. Jones further argues
that the trial court should have granted his motion to sever, but we find that the trial
court did not abuse his discretion in denying the motion. Both defendants argue that
they received ineffective assistance of counsel, but we find that neither has shown
both harm and prejudice. We therefore affirm the convictions.
1. Sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal conviction, “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.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
2 emphasis in original). It is the function of the jury, not the reviewing court, to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the evidence. Id. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
Viewed in this light, the evidence shows that when the victim pulled into his
driveway after being out for the evening, Brooks and Jones, who were armed,
approached him from the side of the house. The men said, “You know what this is.”
The victim, Brooks, and Jones entered the victim’s house, and the men demanded
money, drugs, and jewelry. The men began searching the victim’s house and took his
jewelry and phone. Jones went into a bedroom where the victim’s 12-year-old son
was sleeping. The boy woke up, and Jones threatened him with a pistol and took his
phone. Jones kept the boy in his bedroom through the night. The boy heard another
man demanding money, jewelry, and drugs from his father.
The next morning, in order to get the men to leave, the victim told them that
he could withdraw money for them from his credit union account. Brooks and the
victim drove in the victim’s car to downtown Savannah and Jones stayed with the
3 victim’s son at the house. The victim drove through the city, hoping to encounter a
police officer, while Brooks kept him at gunpoint. The victim saw a police officer and
began driving toward her to get her attention. The officer pulled her weapon. The
victim jumped out of the rolling car, threw up his hands, and said, “They got a gun!”
The car crashed into a building and Brooks fled. The victim told the officer that his
son was being held captive at his house. She called for assistance. Officers then saw
Brooks enter the back door of a restaurant. The SWAT team found Brooks hiding
behind a file cabinet in the restaurant’s office. When an officer patted down Brooks,
he found in Brooks’s pocket a Crown Royal bag containing 10.5 grams of cocaine
and the victim’s jewelry.
In the meantime, police arrived at the victim’s house. Jones hid in the attic. The
boy exited the house, and the police took him to the station, where he was reunited
with his father. Eventually Jones exited the house, got into the victim’s girlfriend’s
car, backed it out, and fled. The street was a dead-end, and Jones crashed the car into
some trees. He exited the car and fled on foot. He was eventually caught in the
woods.
We conclude that the evidence adduced at trial was sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Brooks and Jones were
4 guilty of the crimes of which they were convicted. Jackson, supra, 443 U. S. at 319
(III) (B).
2. The indictment.
Jones argues that his convictions must be reversed because the indictment
under which he was charged was void, as one of the grand jurors who returned the
indictment was a convicted felon. By failing to timely raise it, Jones has waived this
attack on the indictment.
Under OCGA § 15-12-60 (c), “Any person who has been convicted of a felony
in a state or federal court who has not had his or her civil rights restored . . . shall not
be eligible to serve as a grand juror.” But “to be cognizable, most attacks on an
indictment, including a challenge to the composition of the grand jury that returned
it, must be brought within ten days of arraignment, unless the trial court extends that
deadline.” Bighams v. State, 296 Ga. 267, 269 (2) (765 SE2d 917) (2014) (citations
and footnote omitted) (rejecting as untimely appellants’ challenge to indictment that
was allegedly void because of composition of the grand jury). See also Hill v.
Stynchcombe, 225 Ga. 122, 127 (10) (166 SE2d 729) (1969) (challenges to
composition of grand jury must be made within specified time or are waived);
Lumpkin v. State, 152 Ga. 229, 231 (109 SE 664) (1921) (challenge to grand jury
5 based on service of disqualified person must be made within specified time frame,
and “cannot be raised for the first time after verdict”).
Jones argues that he did not waive his attack on the indictment because the
indictment was void, which rendered the judgment of conviction void, and a void
judgment may be attacked at any time. Jones has cited no authority to support his
assertion that a judgment of conviction entered upon an indictment that is allegedly
void due to composition of the grand jury is itself void. But in Garza v. State, 325 Ga.
App. 505, 506 (1) (753 SE2d 651) (2014), we held that the fact that the defendant’s
convictions arose from an indictment void due to an improperly constituted grand
jury did not render his sentence void. Moreover, in Bighams, supra, our Supreme
Court rejected the appellants’ challenge to their convictions based on an allegedly
void indictment, concluding that because they failed to make it within ten days of
arraignment, the appellants waived their argument that an indictment was void due
to the illegal composition of the grand jury.
3. Severance.
Jones argues that the trial court erred by denying his motion to sever his trial
from that of Brooks because the joint trial likely led to juror confusion, evidence of
6 another crime was presented against Brooks, they presented antagonistic defenses,
and he was unable to fully present his statement to police. The claim is without merit.
In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. And the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process. In this case, we conclude that [Brooks] has made no clear showing of prejudice and a consequent denial of due process.
Nwakwanma v. State, __ Ga. __, __ (3) (__ SE2d __) (Case Nos. S14A1442,
S14A1443, decided Jan. 20, 2015) (citations and punctuation omitted).
Jones argues that each defendant was charged with some separate offenses:
Jones was charged with theft by taking an automobile and Brooks was charged with
kidnapping (of which he was acquitted). But it is unlikely the jurors were confused
because only [two] defendants were tried and the law and evidence that applied to each of them were substantially the same. They were jointly tried for almost the same offenses, which involved [almost] the same witnesses, whose credibility the co-defendants jointly attacked, and the [s]tate’s evidence indicated that they acted in concert. In addition, the
7 trial court properly instructed the jury that it was to independently determine the guilt or innocence of each defendant as to each count, and the court provided separate verdict forms for each defendant in order to avoid the potential for confusion.
Id. at __ (3) (citations omitted).
Jones argues that the jury could have concluded that the admission of evidence
of another crime committed by Brooks, admitted under OCGA § 24-4-404 (b), also
involved Jones. “But such evidence did not directly implicate [Jones], and the trial
court gave appropriate limiting instructions, indicating that the similar transaction
evidence could be considered only as to [Brooks].” Id.
Jones argues that he was entitled to severance because a detective testified
about Jones’s statement, but Jones’s references to Brooks were omitted, which
deprived Jones of the opportunity of putting his statement in the proper context by
showing that Brooks, not Jones, was the main actor. The two references to Brooks in
Jones’s statement were that although Jones never saw it, Brooks “had to have a gun
. . . ‘cause [the victim] kept talking about killing, killing,” and that when Brooks left
with the victim in the morning it was to get the “coke.” These statements would have
been merely cumulative of other evidence in the record showing that Brooks had a
gun and that Brooks left with the victim to get something, albeit money instead of
8 cocaine. The omission of statements that would have been merely cumulative did not
mandate severance. Brown v. State, 260 Ga. App. 77, 79 (1) (c) (2003).
Jones argues that his defense was antagonistic to Brooks’s defense. He points
out that in his closing argument, Brooks’s trial counsel conceded that Brooks
committed the crimes of false imprisonment and burglary, and argued that the issue
for the jury to resolve was whether Brooks committed kidnapping and armed robbery.
Jones’s defense, however, was that while “Jones voluntarily went with Brooks to
obtain cocaine from [the victim], that Jones never expected things to unfold as they
did and that he simply remained at the residence while Brooks turned the encounter
to be fronted some cocaine into the disaster that actually occurred.” In no way,
however, does this defense conflict with Brooks’s defense; Jones does not deny that
the events at the victim’s house occurred, as conceded by Brooks; he just contends
that he did not intend for them to happen. “Moreover, the evidence against [Jones]
implicated him as a party to the [armed robbery, burglary, aggravated assault, and
false imprisonment] committed by [Brooks], so we fail to see how a defense by
[Jones] implicating [Brooks] would have benefitted him.. . . Under these
circumstances, [Jones] has failed to carry his burden of making a clear showing that
the joint trial was prejudicial and a denial of due process.” Dorsey v. State, __ Ga.
9 App. __ , __ (3) (__ SE2d __) (Case No. A14A1893, decided March 24, 2015).
Consequently, we conclude that “the trial court did not abuse [his] discretion in
denying [the] motion to sever.” Jones v. State, 277 Ga. App. 185, 188 (626 SE2d 185)
(2006) (citation omitted).
4. Jones’s motion for mistrial.
Jones argues that the trial court abused his discretion by denying his motion for
mistrial. When defense counsel was cross-examining the detective about Jones’s
statement described above, the prosecutor objected on the basis of “the rule of
completeness” and accused defense counsel of “piecemealing” the statement. Defense
counsel moved for a mistrial on the ground that the prosecutor’s objection implied
that defense counsel was misrepresenting the statement. The trial court denied the
motion for mistrial, but, in front of the jury, admonished the prosecutor that an
objection based on the rule of completeness was improper. “Whether to grant a
motion for mistrial is within the trial court’s sound discretion, and the trial court’s
exercise of that discretion will not be disturbed on appeal unless a mistrial is essential
to preserve the defendant’s right to a fair trial.” Grissom v. State, 296 Ga. 406, 414
(6) (768 SE2d 494) (2015) (citation omitted). Jones has not shown that the trial court
abused his discretion. Taylor v. State, 326 Ga. App. 27, 32 (3) (755 SE2d 839) (2014)
10 (trial court did not abuse discretion in denying motion for mistrial because of
prosecutor’s allegedly improper comment on the evidence and instead instructing
prosecutor not to “supply an editorial.”).
To the extent Jones argues that the trial court erred by denying his request to
introduce his statement to police in its entirety, he does not point to the record where
he made such a request.
5. Perjury.
Brooks argues that his conviction must be reversed because of perjured
testimony from state’s witnesses. This argument lacks merit.
First, Brooks argues that a detective who testified at the hearing to determine
the admissibility of similar transaction evidence perjured himself. Specifically, that
detective testified that when Brooks exited the victim’s car, after the victim
abandoned it when he saw the police officer, Brooks had a gun in his hand and he fled
with it. When asked whether Brooks explained what he had done with the gun, the
detective testified that “I believe he said he just threw it down.” Brooks contends that
this testimony was perjured, because he never admitted to the detective that he had
a gun. To support his claim, Brooks points solely to his own testimony at the motion
11 for new trial hearing. He offers no other evidence that the officer lied or perjured
himself.
Second, Brooks argues that at trial, a similar transaction witness committed
perjury when he testified that he had picked out Brooks from a photo lineup, but at
the scene he told an officer that the perpetrator “[h]ad on a tee shirt covering their
face and had do rags.” Brooks does not even argue that the witness did not pick him
out from a photo lineup, and the detective who investigated that crime testified that
the witness did pick out Brooks. “We decline to leap from finding some
inconsistencies in the record to the conclusion that the prosecutor knowingly used
perjured testimony. It is uniquely within the province of the jury to weigh conflicting
testimony under proper instructions from the [c]ourt.” Burrell v. State, 258 Ga. 841,
842 (1) (376 SE2d 184) (1989).
6. Witness’s post-trial false statement conviction.
Brooks argues that his conviction must be reversed because of newly
discovered evidence: the fact that the police officer whom the victim drove toward
when looking for help was convicted after Brooks’s trial and the motion for new trial
hearing of making false statements. As we observed in our order denying Brooks’s
motion to supplement the record with evidence of the officer’s conviction, our duty
12 is to decide cases “according to the true and complete facts as they occurred in the
trial court.” State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984). The officer’s
post-trial, post-motion-for-new-trial conviction was not before the trial court. See
generally, Davis v. State, 283 Ga. 438 (660 SE2d 354) (2008) (describing the
procedural requirements for filing an extraordinary motion for new trial based on
newly-discovered evidence). In any event, Brooks does not assert that the facts
underlying the false statement conviction were related to his case in any way. And
although he characterizes the officer’s testimony at his trial as perjured, he fails to
point out any falsity in her testimony.
7. Ineffective assistance of counsel.
The appellants argue that they received ineffective assistance of trial counsel.
“To prevail on this claim, Appellants must show that their trial lawyers’ performance
was professionally deficient and that, but for the deficiency, there is a reasonable
probability that the outcome of the trial would have been more favorable to them. See
Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674)
(1984).” Bighams, 296 Ga. at 270 (3). Appellants have not met this burden.
(a) Failure to re-new mistrial motion.
13 Jones argues that counsel was ineffective for failing to renew his motion for
mistrial addressed in Division 4, supra, after the trial court admonished the prosecutor
that his objection was improper. Because the trial court did not err in denying Jones’s
motion for mistrial, any error in counsel’s failure to renew the motion was harmless.
“Counsel’s failure to raise a meritless objection did not amount to ineffective
assistance.” Bun v. State, 296 Ga. 549, 552 (3) (__ SE2d __) (2015) (citation and
footnote omitted).
(b) Failure to challenge the indictment.
Brooks argues that trial counsel was ineffective for failing to move to quash the
indictment or to arrest judgment. As for the failure to move to arrest judgment, “a
motion to arrest judgment due to a defective indictment should be granted only when
an indictment is absolutely void in that it fails to charge the accused with any act
made a crime by the law.” State v. Wilson, 318 Ga. App. 88, 92 n. 10 (1) (732 SE2d
330) (2012) (citation and punctuation omitted). Brooks does not argue that the
indictment failed to charge him with an act made a crime by law. Therefore, trial
counsel was not ineffective for failing to move to arrest judgment on this ground.
And at the motion for new trial hearing, trial counsel testified that he did not
move to quash the indictment because the state simply could re-indict Brooks, it
14 would only delay the trial, and he had filed a speedy trial motion. This is reasonable
trial strategy. Robinson v. State, 265 Ga. App. 481, 483 (3) (594 SE2d 696) (2004)
(tactical decision not to delay trial was not ineffective assistance). Moreover,
[e]ven assuming . . . that there was no strategic reason for not filing a timely challenge to the indictment (like the desire not to delay the trial), and thus that trial counsel performed deficiently, [Brooks has] not shown prejudice. If a timely motion to quash had been filed, the indictment likely would have been dismissed because a[ convicted felon] served on the grand jury in violation of OCGA § 15-12-60 [(c)]. The [s]tate would have been free, however, to obtain the identical indictment from a properly constituted grand jury. A dismissal would have been the first in this case, allowing the [s]tate to re-indict. See OCGA § 17-7-53.1 (barring prosecution after two indictments charging the same offenses have been quashed). The [s]tate would have faced no imminent deadlines under the statute of limitations for the crimes with which Appellants were charged. See OCGA § 17-3-1 [ ] (c). And the [s]tate had ample evidence to support the indictment. Under these circumstances, [Brooks] cannot show a reasonable probability that, but for the failure of trial counsel to file a timely motion to quash the indictment, the outcome of the trial would have been different.
Bighams, 296 Ga. at 270 (3) (citations omitted).
(c) Failure to move to sever.
15 Brooks argues that trial counsel was ineffective for failing to move to sever his
trial from Jones’s. As discussed in Division 3, supra, the trial court did not err in
denying severance. Therefore, Brooks has not shown ineffective assistance of counsel
in this regard. See Bun, supra, 296 Ga. at 552 (3) (failure to make meritless objection
is not ineffective assistance).
Judgments affirmed. Ellington, P. J., and Dillard, J., concur.