Russell v. State

745 S.E.2d 774, 322 Ga. App. 553, 2013 Fulton County D. Rep. 2256, 2013 WL 3286250, 2013 Ga. App. LEXIS 559
CourtCourt of Appeals of Georgia
DecidedJuly 1, 2013
DocketA13A0374
StatusPublished
Cited by10 cases

This text of 745 S.E.2d 774 (Russell 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
Russell v. State, 745 S.E.2d 774, 322 Ga. App. 553, 2013 Fulton County D. Rep. 2256, 2013 WL 3286250, 2013 Ga. App. LEXIS 559 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

Following the denial of his motion for new trial, Bobby Russell appeals his burglary conviction. In addition to his contention that the State failed to prove that he entered the building without authority and without the intent to commit a theft and that trial counsel was ineffective, Russell contends that the State failed to prove venue, that the trial court expressed bias against him, and that the trial court erred by recharging the jury without providing him notice. Upon our review, we affirm.

1. Russell first contends that the State presented insufficient evidence to support his burglary conviction, arguing that the State did not prove beyond a reasonable doubt the essential elements of the burglary — that he had entered the building without authority, and with the intent to commit a theft. We do not agree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws 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 State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in this light, the record reveals that an officer with the LaGrange Police Department responded to a burglary-in-progress call at a local grocery store. The officer observed Russell on the store’s [554]*554loading dock with unopened beer. When Russell saw the police officer, he ran, and after a brief chase through a wooded path behind the store, he was captured. Police retrieved several discarded cases of beer along the path. Russell’s twelve-year-old nephew and another minor, both of whom were involved in the burglary, testified that Russell was inside the store and that he had taken beer.

In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 [(2012)]. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict.1

Brown v. State, 199 Ga. App. 18, 21 (4) (404 SE2d 154) (1991).

Here, the circumstantial evidence tying Russell to the crime and justifying an inference of guilt was sufficient to corroborate the accomplices’ testimony. His presence on the loading dock with beer and his subsequent flight from police were sufficiently corroborative of the accomplices’ testimony such that a rational trier of fact could find Russell guilty beyond a reasonable doubt of burglary. See Blair v. State, 246 Ga. App. 533, 534 (541 SE2d 120) (2000) (evidence sufficient where accomplice’s inculpatory testimony was corroborated by defendant’s unexplained recent possession of stolen items and theft tools); Jenkins v. State, 217 Ga. App. 655, 656 (1) (458 SE2d 497) (1995) (proof of unauthorized entry into unoccupied classroom of elementary school, possession of property stolen from that classroom, and flight when questioned about possessing the stolen property supported burglary conviction).

2. Russell’s contention that the State failed to prove venue is also meritless. The store owner testified that his store was located in “LaGrange, Georgia on East Tibo Street” in “Troup County, Georgia.” In this case, venue was proven beyond a reasonable doubt through the testimony of the victim. Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000).

[555]*5553. Russell also contends that trial counsel was ineffective. He maintains that trial counsel failed to adequately investigate and prepare for the trial, failed to object to impermissible testimony, and failed to object to certain actions of the trial court. We do not agree.

To prevail on such claim, a defendant must establish, pursuant to Strickland v. Washington, [466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)] that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. A court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Moreover, the defendant must overcome the strong presumption that his attorney’s performance fell within a wide range of reasonable professional conduct and that the attorney’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(Punctuation and footnotes omitted.) Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007).

(a) Although Russell contends that trial counsel was ineffective for failing to properly investigate his mental health and adequately prepare him to testify at trial in light of his mental condition, at the motion for new trial hearing, trial counsel testified that he had no concerns about Russell’s mental health. Moreover, Russell presented no evidence at the new trial hearing — expert or otherwise — that mental illness might have been an issue to be further explored by his trial counsel. Furthermore, even if counsel were deficient in failing to investigate the issue further, or, as Russell asserts, its impact on his ability to testify at trial, Russell does not demonstrate that he was prejudiced by that failure. See Jennings v. State, 282 Ga. 679, 680 (2) (653 SE2d 17) (2007). With respect to trial counsel’s decision to advise Russell to testify at trial, he must show that “there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors.” (Citation and punctuation omitted.) Tutton v. State, 179 Ga. App. 462, 464 (4) (346 [556]*556SE2d 898) (1986). This he has not done. Moreover, “whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel.” Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994).

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745 S.E.2d 774, 322 Ga. App. 553, 2013 Fulton County D. Rep. 2256, 2013 WL 3286250, 2013 Ga. App. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-state-gactapp-2013.