SECOND DIVISION
MILLER, P. J.,
ANDREWS and SELF, 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
March 8, 2018
In the Court of Appeals of Georgia
A18A0513. HARRIS v. THE STATE.
ANDREWS, Judge.
Robert Harris was convicted of criminal attempt to commit armed robbery,
entering an auto with intent to commit theft, and three counts of armed robbery. He
appeals, asserting that he received ineffective assistance of counsel at trial. He also
claims that the trial court erred in excusing a prospective juror from the jury panel and
in failing to inquire whether he wished to poll the jury following the verdict. For
reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, see Edwards v. State, 299 Ga.
20, 21 (1) (785 SE2d 869) (2016), the evidence shows that around 1:30 or 2:00 a.m.
on June 13, 2014, two masked gunmen approached three young men in a park. With
guns drawn, the masked men ordered the three to empty their pockets, take off their
clothes, and lie on the ground. One victim moved too slowly, and a gunman struck
him in the head. The robbers picked up the victims’ possessions, threw their clothes
into a nearby pond, and fled towards the parking lot where the victims had parked
their car. The victims later discovered that money had been taken from the car
console.
The detective assigned to the case interviewed the victims, but had few leads
as to the robbers’ identities. A few days later, however, the detective began
investigating another incident in which two masked men robbed the manager of a
convenience store at gunpoint, taking the manager’s wallet and approximately $2,500
in cash belonging to the store. During the robbery, the gunmen ordered the manager
to remove his clothing and hit him in the head with a gun. The two men fled when the
store’s alarm sounded.
Harris eventually became a suspect in the crimes, and police obtained a search
warrant for his residence. Inside, police discovered a gun, as well as a pair of shoes
linked to the crimes. Harris subsequently admitted to police that he took part in both
robberies.
Based on the evidence presented, the jury found Harris guilty of criminal
attempt to commit armed robbery, entering an auto with intent to commit theft, and
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three counts of armed robbery. He filed a motion for new trial, which the trial court
denied, and this appeal followed.
1. Harris first argues that he received ineffective assistance of counsel at trial
because trial counsel failed to make an adequate opening statement or closing
argument, did not cross-examine the robbery victims, and offered no mitigation
evidence before sentencing. To prevail on these claims, Harris must show that trial
counsel performed deficiently and that the deficiency “so prejudiced his defense that
a reasonable probability exists that the result of the trial would have been different
but for that deficiency.” Bazin v. State, 299 Ga. App. 875, 876-877 (683 SE2d 917)
(2009) (punctuation and footnote omitted). He cannot meet this burden here.
(a) Opening Statement. Harris contends that counsel’s opening statement was
inadequate because he presented no theory or defense concept for the jury to consider
and did not ask jurors to “keep an open mind.” During his opening, however, trial
counsel asserted that Harris was “not the one who did it” and that he only confessed
because he was dehydrated during the lengthy interrogation and “just start[ed]
agreeing with [the police].” Counsel further stated: “[W]e ask you just to hold off
until the case is over before you make up your mind.” Trial counsel thus presented
two defense theories – identity and false confession – and asked jurors not to
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prejudge the case. Although the opening statement was short, Harris has not
overcome the “strong presumption . . . that trial counsel’s performance was
reasonable and that counsel’s decisions and choices at trial fell within the broad range
of professional conduct as assessed from counsel’s perspective at the time of trial and
under the specific circumstances of the case.” Jones v. State, 296 Ga. 561, 564 (2)
(769 SE2d 307) (2015).
(b) Closing Argument. Harris contends that trial counsel’s closing argument
was insufficient because counsel did not explain the basic principles of law, such as
reasonable doubt and the presumption of innocence. But “the fact that another
attorney might have made a different closing argument does not show
ineffectiveness.” Bazin, supra at 877 (2). Trial counsel presented Harris’s defense
theory during closing argument, and the trial court fully charged the jury on the legal
principles governing the case. Under these circumstances, Harris has not
demonstrated that counsel’s closing argument was deficient or prejudiced his defense.
See id.
(c) Cross-examination. Trial counsel did not ask the four robbery victims any
questions at trial. Harris now challenges this decision, asserting that counsel should
have exploited inconsistencies in the victims’ testimony. At the motion for new trial
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hearing, however, trial counsel explained that he did not cross-examine the men
robbed in the park because their direct testimony failed to support the indictment’s
aggravated assault charges, which alleged that Harris had discharged a weapon near
each victim, and he did not want to give them an opportunity to testify further.
Ultimately, the trial court directed a verdict for Harris on those counts. The record
further shows that none of the robbery victims identified Harris at trial. As counsel
explained at the new trial hearing: “[I]f they haven’t identified him in the direct, I’m
not going to do anything to prompt them to do so on cross.”
“[D]ecisions about what questions to ask on cross-examination are
quintessential trial strategy and will rarely constitute ineffective assistance of
counsel.” Edwards, supra at 24 (2) (citation and punctuation omitted). “In particular,
whether to impeach prosecution witnesses and how to do so are tactical decisions.”
Id. (citation and punctuation omitted). Trial counsel made a strategic choice not to
cross-examine the victims, and that choice was not patently unreasonable. See Romer
v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013) (“[A] tactical decision will not
form the basis for an ineffective assistance of counsel claim unless it was so patently
unreasonable that no competent attorney would have chosen it.”) (citation and
punctuation omitted). Moreover, Harris did not establish at the new trial hearing what
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evidence might have been developed through cross-examination of the victims. He
thus has “not met his burden of showing there is a reasonable probability the result
of the proceedings would have been different had trial counsel cross-examined” these
witnesses. Christian v. State, 297 Ga. App. 596, 599 (2) (b) (677 SE2d 767) (2009).
(d) Sentencing. Harris criticizes trial counsel for failing to offer mitigation
evidence at sentencing. But he “does not suggest what evidence might have served
to mitigate his sentence; he offered no witnesses and proffered no affidavits on this
issue at the hearing on the motion for new trial.” Davis v. State, 286 Ga. 74, 78 (4)
(686 SE2d 249) (2009). He thus cannot demonstrate that he was prejudiced by
counsel’s performance at sentencing, undermining his ineffective assistance claim.
See id.
2. After the jury returned its verdict, the trial court asked whether the defense
wanted the jury polled. Trial counsel declined the poll, and no poll occurred. Harris
claims that the trial court erred in failing to determine whether he affirmatively and
knowingly “waived his right to poll the jury.”
We disagree. Harris has cited no precedent requiring the court to conduct such
an inquiry. On appeal, he analogizes this situation to that arising in Cammer v.
Walker, 290 Ga. 251 (719 SE2d 437) (2011), in which the Supreme Court considered,
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in the context of ineffective assistance of counsel, whether a trial attorney had
provided sufficient legal advice regarding a plea offer. But “we have consistently
rejected ineffective assistance claims based on the failure to conduct a poll.” Ellison
v. State, 296 Ga. App. 752, 756-757 (2) (e) (675 SE2d 613) (2009) (footnote and
punctuation omitted). And although a criminal defendant has a right to poll the jury,
we discern no requirement that the trial court question the defendant about his
knowledge and understanding of the right when counsel affirmatively waives it. See
Laing v. State, 304 Ga. App. 15, 17-18 (1) (695 SE2d 363) (2010) (right to jury poll
is derived from common law and may be waived by, among other things, failure to
timely request the poll), overruled on other grounds by Hamm v. State, 294 Ga. 791,
795-796 (2) & n. 5 (756 SE2d 507) (2014).
Harris also asserts that the trial court should have found that he was harmed by
trial counsel’s failure to request a poll. Again, however, he has pointed to “nothing
in the record to even suggest that the verdict was other than unanimous.” Malerba v.
State, 172 Ga. App. 457, 458 (1) (323 SE2d 666) (1984). This claim of error provides
no grounds for reversal.
3. Finally, Harris argues that the trial court erred in striking a juror from the
jury panel for cause. During general voir dire of all prospective jurors, Juror 13
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indicated that he might not be able to fairly decide the case if selected for the jury.
Later, he stated that he had previously been arrested, although all charges were
ultimately dismissed. Explaining the incident, the juror asserted that an undercover
officer had lied about the facts in court and, after the dismissal, threatened to “get [the
juror] next time.” The prosecutor asked whether the experience “still affect[ed] [the
juror] today.” He responded: “It – not really affect me today, but I’m always leery on
knowing that law enforcement planted [evidence] on me.” The juror then admitted
that he would “have a hard time with the law enforcement witness who comes up and
say[s], we found some evidence.”
The State moved to strike the juror for cause on the ground that he could not
be fair if law enforcement officers testified. The trial court granted the motion, noting
that the juror had “already formed an opinion about a witness, regardless of . . . what
that witness has to say and making an independent decision.” We find no error. “The
trial court has broad discretion to determine a potential juror’s impartiality and to
strike for cause jurors who may not be fair and impartial.” DeVaughn v. State, 296
Ga. 475, 477 (2) (769 SE2d 70) (2015). Juror 13 expressed doubt about his ability to
be fair and indicated that he would have a difficult time believing a law enforcement
witness. Given these circumstances, the trial court did not abuse its discretion in
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excusing the juror from the panel. See id. (trial court properly exercised discretion in
striking juror who indicated that “his prior bad experiences with the police and
prosecutors might affect his judgment in the case and that he was a minister and
would not feel comfortable sitting in judgment of others”); Scales v. State, 310 Ga.
App. 48, 54 (4) (712 SE2d 555) (2011) (“[G]iven the juror’s expressions of bias in
favor of [the defendant] and against police officers, [the defendant] failed to show
that the trial court abused its discretion in striking the juror for cause.”).
Judgment affirmed. Miller, P. J., and Self, J., concur.
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