SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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
July 6, 2016
In the Court of Appeals of Georgia
A16A1242. ANDERSON v. THE STATE.
BARNES, Presiding Judge.
A Cobb County jury found Charles Anderson guilty of armed robbery, and the
trial court sentenced him as a recidivist to life imprisonment without parole.
Anderson filed a motion for new trial, as amended, which the trial court denied. On
appeal, Anderson contends that the trial court erred in allowing the State to introduce
evidence of his recorded telephone conversations made from jail and in sentencing
him as a recidivist. Anderson further contends that his trial counsel rendered
ineffective assistance. For the reasons discussed below, we affirm.
“Following a criminal conviction, the defendant is no longer presumed
innocent, and we view the evidence in the light most favorable to sustain the verdict.”
Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence
showed that Anderson’s stepfather, Willie Plummer, lived in an apartment located on
Six Flags Drive in Cobb County. Plummer lived with his wife and his grandson,
Dashon Hicks.
On Sunday morning, October 28, 2012, Anderson went to Plummer’s
apartment and asked Plummer if he could borrow his car. Plummer agreed, and
Anderson left in the borrowed car with his nephew, Hicks, after asking Hicks to ride
to work with him.
Instead of driving to work, however, Anderson drove with Hicks to
Fayetteville, where they picked up another relative, Shantel Washington, and her
boyfriend, Kenneth Eason. Anderson then drove the group to his own apartment in
Atlanta, where he retrieved a change of clothes and a bag. After Anderson got back
into the car, Washington, who was now driving, drove them to Six Flags Drive near
where Plummer lived and parked down the street from a Waffle House. Anderson told
Hicks that they were going to the restaurant to get their “adrenaline pumping.”
Once Washington parked the car, Eason and Anderson got out and went toward
the Waffle House. Eason donned a ski mask, and Anderson zipped up his hoodie over
his face except for the eyes. Both men wore dark clothing.
According to witnesses inside the Waffle House, two men dressed in black with
their faces covered entered the restaurant around noon when it was crowded with
2
customers. One of the men stood guard at the front entrance while the second man
approached the cash register with a handgun, demanding money. The second man
then jumped over the counter and grabbed the cash from the register while pointing
a gun at a waitress. The witnesses’ descriptions of the two men indicated that Eason
was the man who stood guard at the door while Anderson brandished the handgun
and grabbed the cash from the register.
Eason and Anderson ran from the Waffle House back to the car where
Washington and Hicks were waiting. Washington drove the group away from the
scene. However, as they drove away, the group realized that a person in a van was
following them and was recording the car’s tag number. Anderson told the others that
he would call Plummer and tell him that his car had been stolen.
Washington drove to Anderson’s apartment, and Anderson called Plummer and
told him that someone had stolen his car when it was parked outside a store.
Anderson encouraged Plummer to call the police and report the theft of the car, but
Plummer told Anderson that he should make the call. Anderson made several more
phone calls to Plummer in an unsuccessful attempt to have him call the police and
report the car stolen. Anderson also moved Plummer’s car a block away from his
apartment and left it there.
3
Concerned about his car, Plummer went to Anderson’s apartment to find out
what had happened. When Plummer arrived at the apartment and asked about his car,
Anderson told him it was parked around the corner. Plummer went to his car and
found it undamaged with the keys still in the ignition. Because Anderson claimed the
car had been stolen, Plummer called 911 at that point, and an Atlanta police officer
arrived, looked over the car, and released the car back to Plummer. Plummer and
Hicks then drove the car back to Plummer’s apartment complex on Six Flags Drive.
In the meantime, the police had identified Plummer as the owner of the car
involved in the Waffle House robbery based on the license tag number that had been
provided by the driver of the van who had followed the car after the robbery. The
police arrived at Plummer’s apartment complex around the same time that Plummer
and Hicks returned there with the car. The police stopped the car and detained
Plummer and Hicks.
Plummer and Hicks agreed to be interviewed at the police station. Plummer
told a detective about what had transpired with respect to his car and was released
after his interview. Hicks initially denied any knowledge of the robbery and told a
detective that Plummer’s car had been stolen. Hicks later told the detective about the
robbery and identified Anderson as one of the participants.
4
After speaking with Hicks, the detective obtained an arrest warrant for
Anderson for armed robbery, and the police arrested him early the next morning.
Anderson, Washington, and Eason were jointly indicted for armed robbery. Hicks was
not charged with any offenses.
At Anderson’s trial,1 Plummer and Hicks testified to events as summarized
above. Hicks also testified that he had not known about the planned Waffle House
robbery until they were already driving to the restaurant, denied that he had
participated in the robbery or kept any of the stolen cash, and testified that Anderson
told him to tell the police that Plummer’s car had been stolen and not to mention
Anderson’s name.
Several eyewitnesses to the robbery also testified, as did the lead detective
assigned to the robbery investigation. Additionally, over defense objection, the State
introduced into evidence and played for the jury recorded telephone calls that
Anderson made to Hicks from jail. During the recorded calls, Anderson questioned
1
Eason was separately tried and convicted of armed robbery, and his
conviction was affirmed by this Court in Eason v. State, 331 Ga. App. 59 (769 SE2d
772) (2015). The status of Washington’s case is unclear from the record.
5
Hicks about what he had told the police and admonished Hicks for revealing
Anderson’s participation in the robbery.
After the State rested, Anderson elected not to testify. He did not call any
defense witnesses.
Upon hearing all the evidence, the jury found Anderson guilty of armed
robbery. Following the guilty verdict, the State introduced certified copies of
Anderson’s three prior convictions, one of which was a nolo contendere plea to armed
robbery in Michigan. Based on the three certified prior felony convictions, the trial
court sentenced Anderson as a recidivist under OCGA § 17-10-7 (a) and (c) to life
imprisonment without parole.
Anderson filed a motion for new trial. Anderson’s was appointed new counsel
who filed an amended motion, alleging that Anderson’s recorded jail telephone
conversations with Hicks had been improperly admitted at trial, that his recidivist
sentence was improper, and that his trial counsel had rendered ineffective assistance.
Following a hearing at which Anderson’s trial counsel testified, the trial court denied
Anderson’s amended motion for new trial. This appeal followed.
1. Anderson contends that the trial court erred by allowing the State to
introduce the two recorded telephone calls that he made to Hicks from jail. According
6
to Anderson, the recorded calls were inadmissible because they showed his bad
character in that he used “street language and foul language” in the calls, and because
the probative value of the calls was substantially outweighed by the danger of unfair
prejudice. We disagree.
“It is well established that evidence that is relevant to an issue in the case is not
rendered inadmissible simply because it incidentally puts the defendant’s character
at issue.” Jones v. State, 283 Ga. App. 812, 813 (1) (642 SE2d 887) (2007). Evidence
is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” OCGA § 24-4-401.2 See State v. Jones, 297 Ga.
156, 159 (2) (773 SE2d 170) (2015). And while “[r]elevant evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice .
. . ,” OCGA § 24-4-403, exclusion is “an extraordinary remedy which the courts
should invoke sparingly, and the balance should be struck in favor of admissibility.”
(Punctuation and footnote omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763
2
Because Anderson’s trial commenced in May 2014, Georgia’s new evidence
code applies. See Ga. Laws 2011, Act 52, § 101 (new evidence code “shall become
effective on January 1, 2013, and shall apply to any motion made or hearing or trial
commenced on or after such date”).
7
SE2d 261) (2014). Furthermore, “as a general rule, admission of evidence is a matter
resting within the sound discretion of the trial court, and appellate courts will not
disturb the exercise of that discretion absent evidence of its
abuse.” (Punctuation and footnote omitted.) Oliver v. State, 329 Ga. App. 377, 379
(765 SE2d 606) (2014).
We discern no abuse of discretion by the trial court in admitting the recorded
jail telephone calls. During the calls, Anderson quizzed Hicks about what he told the
police about the robbery, and Anderson became upset when Hicks admitted that he
had given the police Anderson’s name. Anderson admonished Hicks for divulging his
name to the police, reminding Hicks that he had told him not to bring up Anderson’s
name if questioned about the robbery. Anderson also asked Hicks if he told the police
that Anderson had a gun. Additionally, Anderson told Hicks that the police would put
“pressure” on Hicks while interviewing him, but that the pressure should not get to
Hicks because Hicks had not done anything.
Anderson’s statements in the recorded telephone calls were relevant and
admissible to show his consciousness of his own guilt for the armed robbery.3 See
3
We note that Anderson’s statements constituted admissions of a party
opponent under OCGA § 24-8-801 (d) (2) (A) and thus were not inadmissible
hearsay. See Bostic v. State, 294 Ga. 845, 848 (2) (757 SE2d 59) (2014) (defendant’s
8
Bostic, 294 Ga. at 848 (2) (“[A]ny statement or conduct of a person, indicating a
consciousness of guilt, where such person is, at the time or thereafter, charged with
or suspected of crime, is admissible against him upon his trial for committing it.”)
(citation and punctuation omitted). Anderson’s statements also were relevant and
admissible to corroborate Hick’s testimony that he did not participate in the robbery
and that Anderson had told him not to give Anderson’s name to the police. See
United States v. Mena, 564 Fed. Appx. 995, 998 (11th Cir. 2014) (evidence was
relevant to corroborate testimony of witness whose credibility the defendant had
attacked).4 “This is true even if [the statements] incidentally placed [Anderson’s]
character into evidence.” Bostic, 294 Ga. at 848 (2). See Lewis v. State, 293 Ga. 110,
114 (2) (a) (744 SE2d 21) (2013).
Moreover, Anderson has not demonstrated that the probative value of the
recorded telephone calls was substantially outweighed by the danger of unfair
prejudice under OCGA § 24-4-403. As we have pointed out, “[t]he primary function
statements made to fellow inmate while in jail awaiting trial were properly admitted
as admissions of a party opponent).
4
“Given the similarity between Georgia’s new evidence code and the Federal
Rules of Evidence it is proper that we give consideration and great weight to
constructions placed on the Federal Rules by the federal courts.” (Citation and
punctuation omitted.) Williams, 328 Ga. App. at 879 (1), n.14.
9
of [OCGA § 24-4-403] . . . is to exclude evidence of scant or cumulative probative
force, dragged in by the heels for the sake of its prejudicial effect,” Williams, 328 Ga.
App. at 879-880 (1), but that was not the situation here, where the recorded calls were
clearly relevant to show Anderson’s consciousness of guilt and to corroborate Hicks’s
testimony. In light of the strong preference for admission of relevant evidence under
OCGA § 24-4-401, the trial court did not abuse its discretion in striking the balance
in favor of admitting the recorded calls into evidence. See Mena, 564 Fed. Appx. at
998; Bostic, 294 Ga. at 848 (2); Lewis, 293 Ga. at 114 (2) (a).
2. Anderson next contends that the trial court erred in sentencing him as a
recidivist under OCGA § 17-10-7 (a) and (c). Again, we disagree.
The recidivist statute imposes maximum sentences for any person
convicted of a felony who was previously convicted under the laws of
any other state or of the United States of a crime which if committed
within this state would be a felony. See OCGA § 17-10-7 (a). In turn, if
the person has three such prior felony convictions, upon a fourth felony
conviction the person must serve the sentence without the possibility of
parole. See OCGA § 17-10-7 (c). The burden is on the [S]tate to produce
competent evidence of a prior conviction for purposes of sentencing.
The State bears the burden of showing that the foreign convictions were
for conduct which would be considered felonious under the laws of this
state. And failure to properly prove the prior convictions requires
remand and resentencing.
10
(Citations and punctuation omitted.) Davis v. State, 319 Ga. App. 501, 504 (2) (736
SE2d 160) (2012). See OCGA § 17-10-7 (a),5 (c).6
After the jury found Anderson guilty of armed robbery, the State introduced
certified copies of three prior convictions for purposes of recidivist sentencing under
OCGA § 17-10-7 (a) and (c). One of the prior convictions was for armed robbery in
Michigan. The certified copies of the Michigan charging document and judgment of
sentence reflect that Anderson pled nolo contendere to armed robbery in Michigan
5
OCGA § 17-10-7 (a) provides: “Except as otherwise provided in subsection
(b) or (b.1) of this Code section, any person who, after having been convicted of a
felony offense in this state or having been convicted under the laws of any other state
or of the United States of a crime which if committed within this state would be a
felony and sentenced to confinement in a penal institution, commits a felony
punishable by confinement in a penal institution shall be sentenced to undergo the
longest period of time prescribed for the punishment of the subsequent offense of
which he or she stands convicted, provided that, unless otherwise provided by law,
the trial judge may, in his or her discretion, probate or suspend the maximum sentence
prescribed for the offense.”
6
OCGA § 17-10-7 (c) provides: “Except as otherwise provided in subsection
(b) or (b.1) of this Code section and subsection (b) of Code Section 42-9-45, any
person who, after having been convicted under the laws of this state for three felonies
or having been convicted under the laws of any other state or of the United States of
three crimes which if committed within this state would be felonies, commits a felony
within this state shall, upon conviction for such fourth offense or for subsequent
offenses, serve the maximum time provided in the sentence of the judge based upon
such conviction and shall not be eligible for parole until the maximum sentence has
been served.”
11
Recorder’s Court for stealing a car from a victim at gunpoint on August 19, 1991, and
that Anderson was given a sentence committing him to the Michigan Department of
Corrections for a term of six to fifteen years. His sentence included a court
recommendation that he be housed in a facility with youthful offenders.7
On appeal, Anderson contends that the State failed to prove that his prior
Michigan conviction would have constituted a felony in Georgia, given that he was
under 17 years old and thus was a juvenile offender when the Michigan offense
occurred.8 Consequently, Anderson maintains that his Michigan conviction could not
7
Anderson also pled nolo contendere to kidnapping and possession of a felony
firearm in the Michigan case, but his convictions and sentences on these additional
counts were later vacated during resentencing. In contrast, Anderson’s original
sentence of six to fifteen years for armed robbery remained in place as part of the
resentencing, and Anderson was again sentenced to the custody of the Michigan
Department of Corrections, with the same court recommendation that he be
incarcerated in a facility for youthful offenders.
8
There is some discrepancy in the record as to whether Anderson was in fact
under 17 years old when he committed the Michigan armed robbery. But assuming
arguendo that Anderson was younger than 17 when he committed the Michigan
offense, we conclude that the offense still could have been prosecuted as a felony if
it had been committed in Georgia, as explained below.
12
be used by the trial court as a prior felony conviction for the purpose of sentencing
him as a recidivist under OCGA § 17-10-7 (a) and (c).9
As an initial matter, we note that Anderson did not object to the admission of
his Michigan conviction at the sentencing hearing. In any event, even if Anderson did
not waive his objection to the Michigan conviction by failing to object in the trial
court,10 the trial court committed no error in using the conviction as a predicate
offense for recidivist punishment.
As a general rule, prior offenses committed in other states by a defendant when
he was a juvenile cannot be used as predicate convictions for recidivist punishment
because in Georgia, “[a] juvenile is not convicted of felonies, but adjudicated
delinquent, based on delinquent acts,” and “[t]he plain terms of [the recidivist statute]
9
Anderson does not dispute that a nolo contendere plea can constitute a prior
conviction for purposes of recidivist sentencing. See Phillips v. State, 329 Ga. App.
279, 282 (2) (a) (764 SE2d 879) (2014).
10
See, e.g., Robbins v. State, 326 Ga. App. 812, 813 (757 SE2d 452) (2014)
(defendant’s argument that first offender guilty plea did not constitute a “conviction”
for purposes of recidivist sentencing could be raised for the first time on appeal
because “a challenge to . . . [a] void sentence cannot be waived by the failure to
object”) (citations and punctuation omitted). Compare von Thomas v. State, 293 Ga.
569, 573-574 (2) (748 SE2d 446) (2013) (distinguishing between different types of
challenges to prior convictions used for recidivist sentencing that can and cannot be
waived by the failure to object in the trial court, and holding that a challenge to the
validity or existence of a prior conviction can be waived).
13
require that the defendant be convicted of prior crimes which if committed in this
state would be felonies.” Miller v. State, 231 Ga. App. 869, 871 (2) (501 SE2d 42)
(1998). However, if the defendant, despite his juvenile status, could have been
convicted of a felony if the prior offense had been committed in Georgia, then the
prior offense can be used as a predicate conviction for recidivist punishment under
OCGA § 17-10-7 (a) and (c). See Moore v. State, 276 Ga. App. 55, 56 (622 SE2d
417) (2005). That is the situation here.
When Anderson committed the Michigan armed robbery in August 1991,
juvenile courts in Georgia had jurisdiction over juvenile matters involving children
under 17 years old. See OCGA §§ 15-11-2 (2) (A); 15-11-5 (a) (1) (1991). But the
Georgia statute that addressed the jurisdiction of juvenile courts also gave superior
courts concurrent jurisdiction over certain offenses committed by juveniles:
Concurrent criminal jurisdiction. The [juvenile] court shall have
concurrent jurisdiction with the superior court over a child who is
alleged to have committed a delinquent act which would be considered
a crime if tried in a superior court and for which the child may be
punished by loss of life or confinement for life in a penal institution.
14
(Emphasis in original.) OCGA § 15-11-5 (b) (1991). Juvenile courts and superior
courts thus had concurrent jurisdiction over a child under 17 years old who
committed a crime punishable by loss of life or confinement for life. See id.
As previously noted, the Michigan charging document alleged that Anderson
took a car from the presence of the victim by use of a handgun. These same
allegations would have constituted the crime of armed robbery under Georgia law.
See OCGA § 16-8-41 (b) (1991) (“A person commits the offense of armed robbery
when, with intent to commit theft, he takes property of another from the person or the
immediate presence of another by use of an offensive weapon[] . . . .”). Furthermore,
the potential punishment for armed robbery in Georgia included imprisonment for
life. See OCGA § 16-8-41 (b) (1991). Thus, if Anderson had committed the same
offense in Georgia as a juvenile in 1991, a superior court would have had concurrent
jurisdiction over the matter and Anderson could have been convicted of the felony
offense of armed robbery. See OCGA § 15-11-5 (b) (1991).
For this reason, the State met its burden of proving that Anderson’s Michigan
conviction was for conduct that would have been considered a felony under Georgia
law. The trial court therefore committed no error in using the Michigan conviction as
a predicate offense for recidivist punishment under OCGA § 17-10-7 (a) and (c) and
15
sentencing Anderson accordingly. See Moore, 276 Ga. App. at 56 (prior armed
robbery by juvenile could be used for recidivist sentencing). Compare Smith v. State,
266 Ga. App. 111, 112-113 (596 SE2d 230) (2004) (prior delinquent act of burglary
by juvenile could not be used for recidivist punishment because superior court did not
have concurrent jurisdiction over that offense).
3. Lastly, Anderson contends that his trial counsel rendered ineffective
assistance in several respects. To establish a claim of ineffective assistant of counsel
under the test established in Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984), Anderson
must show both that counsel’s performance was deficient, and the
deficient performance was prejudicial to his defense. Moreover, to
establish deficient performance, [Anderson] . . . must overcome the
strong presumption that his counsel’s conduct fell within the broad
range of reasonable professional conduct and show that his counsel
performed in an objectively unreasonable way, considering all
circumstances and in the light of prevailing professional norms. Further,
failure to satisfy either prong of the Strickland test is sufficient to defeat
a claim of ineffective assistance, and it is not incumbent upon this Court
to examine the other prong.
(Citations and punctuation omitted.) Brannon v. State, 298 Ga. 601, 611 (7) (783
SE2d 642) (2016). In addressing a claim of ineffective assistance on appeal, we
16
review the trial court’s legal conclusions de novo and its factual findings under the
clearly erroneous standard. Ellison v. State, 296 Ga. App. 752, 755 (2) (675 SE2d
613) (2009).
(a) Anderson argues that his trial counsel was ineffective for failing to object
to the trial court’s use of his prior Michigan conviction as a predicate offense for
recidivist punishment. But, as explained supra in Division 2, Anderson’s Michigan
conviction could be used for purposes of recidivist sentencing. Anderson’s trial
counsel was not ineffective for failing to raise a meritless objection. See Copeland
v. State, 281 Ga. App. 11, 14 (3) (b) (635 SE2d 283) (2006).
(b) Anderson also argues that his trial counsel was ineffective for failing to
subpoena any eyewitnesses to the Waffle House robbery and have them testify as
defense witnesses. However, at the hearing on Anderson’s motion for new trial, his
trial counsel testified that as part of his investigation, he had reviewed the witness
statements taken by the police at the Waffle House and did not believe that any of the
witnesses would testify favorably for the defense.
“It is well established that the decision as to which defense witnesses to call is
a matter of trial strategy and tactics, and that tactical errors in that regard will not
constitute ineffective assistance of counsel unless those errors are unreasonable ones
17
no competent attorney would have made under similar circumstances.” (Citations and
punctuation omitted.) Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009).
Based on trial counsel’s testimony at the new trial hearing, Anderson has failed to
show that his counsel’s decision not to subpoena any eyewitnesses to testify for the
defense at trial was so unreasonable that no competent attorney would have made the
same decision. See id.
(c) Anderson contends that his trial counsel was ineffective for asking a
question on cross-examination that elicited testimony from the lead detective that
impermissibly bolstered Hick’s credibility before the jury. He further contends that
his trial counsel was ineffective for failing to object or move to strike the bolstering
testimony once elicited from the detective.
During trial, Anderson’s trial counsel asked the lead detective several questions
on cross-examination aimed at undermining Hick’s credibility before the jury. Among
other things, trial counsel inquired about Hick’s second interview with the detective
in which Hicks for the first time admitted that Plummer’s car had not been stolen and
that Anderson was present at the robbery:
COUNSEL: . . . [H]ow long did that second set of interviews [with
Hicks] last?
18
DETECTIVE: Oh, less than an hour, most likely.
COUNSEL: During the course of that hour, did he tell you that he’d do
anything or say anything in order to stay out of prison?
DETECTIVE: I don’t recall that, no.
COUNSEL: Okay.
DETECTIVE: I do recall him making statements that he didn’t - - did
not want to go to jail, did not want to go to prison for something he
didn’t do.
(Emphasis supplied.)
Contrary to Anderson’s argument, the detective’s last answer did not amount
to impermissible bolstering. “It is erroneous for a witness, even an expert, to bolster
the credibility of another witness by expressing an opinion that the witness is telling
the truth. What is forbidden is opinion testimony that directly addresses the credibility
of the victim, i.e., ‘I believe the victim; I think the victim is telling the truth.’”
(Citations and punctuation omitted.) Wright v. State, 327 Ga. App. 658, 661 (2) (a)
(760 SE2d 661) (2014). In his last answer, however, the detective did not express an
opinion that Hicks was telling the truth, and thus did not directly address Hick’s
19
credibility. Because the detective’s testimony did not constitute impermissible
bolstering, Anderson has failed to show that his trial counsel was deficient in his
questioning of the detective or in his failure to object or move to strike the detective’s
testimony. See id. at 661-662 (2) (a).
Furthermore, trial counsel testified at the new trial hearing that he had not
believed that any objection to the detective’s response was necessary, given that
counsel had already highlighted to the jury that Hicks had lied to the police. The
scope of cross-examination and the decision whether to raise certain objections is a
matter of trial tactics and strategy. See Brunson v. State, 322 Ga. App. 302, 303 (2)
(744 SE2d 801) (2013); Martinez v. State, 303 Ga. App. 166, 174 (4) (b) (692 SE2d
766) (2010). Anderson has failed to show that his trial counsel’s strategy on cross-
examination of the detective was so unreasonable that it constituted ineffective
assistance.
Judgment affirmed. Boggs and Rickman, JJ., concur.
20