Pugh v. State

747 S.E.2d 101, 323 Ga. App. 31, 2013 Fulton County D. Rep. 2498, 2013 WL 3500144, 2013 Ga. App. LEXIS 643
CourtCourt of Appeals of Georgia
DecidedJuly 15, 2013
DocketA13A0634
StatusPublished
Cited by3 cases

This text of 747 S.E.2d 101 (Pugh v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pugh v. State, 747 S.E.2d 101, 323 Ga. App. 31, 2013 Fulton County D. Rep. 2498, 2013 WL 3500144, 2013 Ga. App. LEXIS 643 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

Following a jury trial, Brandon Sanchez Pugh was convicted on three counts of armed robbery (OCGA § 16-8-41) and two counts of giving a false statement to a law enforcement officer (OCGA § 16-10-20). He appeals from the denial, in part, of his motion for new trial, contending that he had ineffective assistance of counsel.1 For the following reasons, we affirm.

Viewed in the light most favorable to the verdict,2 the evidence shows that around 9:00 a.m. on August 18, 2008, Tracy Dukes, Betty Williams, and Areli Lynn Sanders were working as tellers at a Wachovia Bank branch when two African-American males wearing ski masks and gloves entered the bank, held them at gunpoint, and robbed them of approximately $18,000. The masked men took money from the tellers, which was placed into bags along with red dye packs. The men then took the bags and fled the bank.

Immediately before the robbery, a bank customer, Tom Thompson, was on his way into the bank to make a deposit when he noticed a white Cadillac Seville backed into a parking space with both the driver and passenger doors partially open. After completing his transaction at the bank, Thompson was walking back to his car when he saw two men wearing ski masks jump out of the Cadillac and run into the bank. Thompson immediately called 911 and provided the operator with the tag number of the vehicle. A few minutes later, Thompson saw the two men run out of the bank, get back into the Cadillac, and drive off.

As the perpetrators were driving off, another bank customer, J anet Hilgerson, had just pulled into the bank parking lot. A bystander yelled at Hilgerson, telling her that the bank had just been robbed [32]*32and to “follow that car.” Hilgerson turned her vehicle around and followed the white Cadillac Seville from the bank to a nearby Efficiency Lodge hotel. After the Cadillac turned into the Efficiency Lodge parking lot, Hilgerson turned her vehicle around, went back to the bank, and provided the police officer who had responded to the scene with a partial tag number of the Cadillac and the vehicle’s location.

The police went to the Efficiency Lodge and found the white Cadillac Seville parked behind the hotel. Investigators later found red dye stains inside the vehicle, as well as Pugh’s checkbook.

After determining that the vehicle was registered to Pugh, investigators located Pugh later that day at Hartsfield Jackson International Airport, where he worked as a tug operator. Before speaking with Pugh, the investigators were informed that the Cadillac had been reported stolen. Pugh had gone to the East Point Police Department around 11:00 a.m. that day, approximately two hours after the armed robbery, and reported that his car had been stolen from a Texaco some 11 hours earlier, around 12:30 a.m.

The investigators interviewed Pugh at the Atlanta Police Department’s office located within the airport. At the time of the interview, Pugh was accompanied by his supervisor and a Delta security officer. The investigators told Pugh why they wanted to speak with him and informed him that he was not under arrest. There is no evidence that Pugh was restrained in any way, or that he ever requested an attorney to be present or asked to stop the interview. During the interview, Pugh stated that he was at home in bed at the time of the armed robbery and that he did not get out of bed until his parents came to get him to take him to the East Point Police Department to report that his car had been stolen.

One investigator testified that, before the interview, he thought that Pugh could have been a victim of car theft and that someone had used his car during the armed robbery, and that the investigator expected the interview to only last a few minutes. However, when questioned about the theft of his vehicle, Pugh gave inconsistent statements concerning the circumstances of the alleged theft, began showing signs of extreme nervousness, materially changed his account of what happened, and failed to give a logical reason or explanation as to why he did not immediately report the theft of his vehicle.

Pugh had a black book bag with him at the interview, which he admitted to having with him at the time of the theft. The investigators asked for and obtained Pugh’s consent to examine its contents. The bag contained Pugh’s vehicle registration and insurance cards (things that are typically kept in a vehicle), as well as gloves. The investigators also observed red stains on his left hand consistent with [33]*33stains that would come from a red dye pack. Based on the foregoing, as well as the fact that Pugh matched the physical description of one of the men involved in the armed robbery, Pugh was placed under arrest.

During the subsequent investigation, the police interviewed Pugh’s neighbor, Ricky Smith, who stated that, at about 10:30 on the morning of the armed robbery, he observed Pugh being dropped off at his home by another man. Smith’s statement, which he later confirmed through his testimony at trial, directly contradicted Pugh’s account of his whereabouts on the morning of the armed robbery. The police executed a search warrant for Pugh’s house and found a red stain in a bathroom trash can. The police were also able to determine that Pugh had a financial motive to commit the armed robbery, as Pugh was deeply in debt and had been sued in various lawsuits, and his wages were being garnished at the maximum rate.

Following a jury trial, Pugh was convicted on all charges for which he was indicted, but the trial court vacated his convictions for giving false statements to law enforcement. The remaining convictions for armed robbery are at issue on appeal.

1. Pugh contends that trial counsel rendered ineffective assistance by failing to impeach the testimony of Pugh’s neighbor, Ricky Smith, with a prior inconsistent statement. We discern no error.

In considering the trial court’s ruling on a claim of ineffective assistance of counsel, this Court accepts “the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011).

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation and footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001).

At trial, Smith testified that he observed a man drop Pugh off at his home at about 10:30 on the morning of the armed robbery. This testimony was significant because Pugh had told the investigators that he had been at home in bed all morning and that he did not get [34]*34up until 11:00 a.m. when his parents came to pick him up.

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747 S.E.2d 101, 323 Ga. App. 31, 2013 Fulton County D. Rep. 2498, 2013 WL 3500144, 2013 Ga. App. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pugh-v-state-gactapp-2013.