FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
April 30, 2020
In the Court of Appeals of Georgia
A19A0556. LESLIE v. THE STATE.
GOBEIL, Judge.
In 2013, a jury found Tedric Leslie guilty of kidnapping and armed robbery,
and the trial court imposed a total sentence of life imprisonment. Leslie appeals from
the trial court’s grant of his motion for an out-of-time appeal, arguing: (1) the
evidence was insufficient to sustain his kidnapping conviction; (2) the application of
the kidnapping statute, OCGA § 16-5-40 (b) (2) (B), violated his constitutional rights
because the statute is void for vagueness;1 (3) the trial court erred in admitting
Leslie’s mother’s prior statement to police; (4) the trial court committed plain error
1
We previously transferred Leslie’s appeal to the Supreme Court of Georgia
to address Leslie’s constitutional challenge in the first instance. The Supreme Court
transferred the appeal back to us, finding that its jurisdiction had not been invoked
because Leslie had failed to timely raise his challenge to OCGA § 16-5-40 (b) (2) (B)
in the trial court. See Case No. S19A1505 (transferred Aug. 19, 2019).
in a jury charge by impermissibly shifting the burden of proof to the defense; (5) the
trial court erred in failing to excuse a juror for cause; (6) the trial court erred in
admitting evidence of other robberies; (7) his trial counsel rendered ineffective
assistance by failing to object to inadmissible and prejudicial hearsay with respect to
a confidential informant; and (8) his post-conviction counsel rendered ineffective
assistance by failing to present any evidence at the motion for new trial hearing.
Leslie also argues that: (9) remand to the trial court is necessary for a hearing
regarding trial counsel’s ineffectiveness, as well as his post-conviction counsel’s
failure to raise additional claims in his motion for new trial with respect to trial
counsel’s ineffectiveness. For the reasons that follow, we now affirm.
On appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to support the verdict, and the defendant no
longer enjoys a presumption of innocence; moreover, an appellate court
determines evidence sufficiency and does not weigh the evidence or
determine witness credibility.
Williams v. State, 333 Ga. App. 879, 879 (777 SE2d 711) (2015) (citation and
punctuation omitted). So viewed, the record shows that on June 27, 2012, S. A. was
the sole clerk on duty at Ralph’s Econoflash (“Ralph’s”), a convenience store located
in Douglas County. At approximately 9:35 p.m., a female customer, later identified
2
as Itoria Howard, entered the store, purchased a drink, and then left. The clerk
recognized Howard as a frequent customer. After Howard left, the clerk heard the
doorbell ring, and two males, later identified as Dayvon Grant (“Dayvon”) and Leslie,
entered the store and ran to the counter. They approached S. A., who was sweeping
behind the counter. One of the men, who was holding a gun, jumped over the counter,
grabbed S. A. by the neck, and threw him to the ground back over in front of the
counter. During the scuffle, the gun, which the victim described as small and silver-
colored, discharged.
While holding S. A. by the neck, one of the assailants then forced S. A. at
gunpoint back to the cash register behind the counter and told him to “open the f----
ing register.” The victim believed that the assailant was “going to shoot [him] with
the gun.” S. A. opened the register and then was forced to the ground again and held
at gunpoint, while the other assailant grabbed the money from the cash register, which
totaled approximately $3,600, and put it in a bag. The two men took the money, some
cigars, and some receipts and other documents that were kept under the cash drawer,
and then left the store on foot.
After the assailants left, the victim locked the door and called the police. At
trial, the victim described that one of the assailants was tall with a slim build, and the
3
other man as “kind of short.” Both men wore dark clothing, had covered their faces
with torn pieces of clothing, and wore gloves. Police later located the bullet fired
from the gun during the course of the robbery inside the Ralph’s, but not the gun
itself.
Less than two months after the Ralph’s robbery, on August 8, 2012, an armed
robbery occurred at a GameStop retail store. Surveillance video acquired from the
businesses adjacent to the GameStop showed Dayvon, Sabor Grant (“Sabor”), and
Luvonne Tarver2 in the vicinity of the GameStop mere minutes before the robbery.
Employees from one of the adjacent businesses identified Dayvon, and informed
police that he was often seen with his girlfriend, Howard, the same woman who had
purchased a drink in Ralph’s just before the armed robbery at that establishment.
Two days later, on August 10, 2012, just before 10 p.m., law enforcement
responded to reports of an armed robbery at the Dollar General store involving three
males. A responding officer noticed a BMW driving away from the scene of the
Dollar General with a male at the wheel and at least two other passengers in the
vehicle. The officer attempted to intercept the vehicle, but the BMW failed to stop.
The car eventually crashed into another vehicle before coming to a stop. While the
2
Sabor and Dayvon are brothers, and Tarver is their mother.
4
vehicle was still in motion, the occupants jumped out of the car and started running.
Officers apprehended two of the occupants – a female, identified as Tarver, and the
driver, a male later identified as Sabor. . The Douglas County Sheriff’s Office
processed the BMW pursuant to a search warrant and recovered several items: pieces
of clothing, including fabric cut from t-shirts; a driver’s license belonging to Sabor;
a social security card and birth certificate belonging to Dayvon; a purse and wallet;
and a .22 caliber revolver. The revolver contained four live rounds and one spent
cartridge. Officers later established that the bullet recovered at the scene of the
Ralph’s robbery was fired from the revolver found inside the BMW. Analysis of the
firearm failed to yield any fingerprints. Police also recovered two blue synthetic
rubber gloves in the front driver side floorboard of the BMW. The clothing items and
documentation recovered from the BMW led to the “photo development” of Dayvon,
Sabor, and Tarver as suspects in the armed robberies. Leslie was not a suspect at that
time.
Based on information gathered from the GameStop and Dollar Tree robberies,
officers issued an arrest warrant for Dayvon. A search of Howard’s home, where
Dayvon had been staying, revealed the bag used in the Ralph’s robbery, receipts and
other documents taken from the Ralph’s cash register, and clothing worn by the
5
assailants as depicted on the Ralph’s surveillance video. Both Dayvon and Howard
were arrested. Following their arrests, the police received an anonymous tip via e-
mail that the second male seen on surveillance footage of the Ralph’s robbery was
Leslie. Officers then compared a photograph of Leslie to the suspect seen on video
at Ralph’s and determined it was the same person.
Based on the foregoing, a grand jury returned an indictment charging Leslie
with armed robbery of the Ralph’s store, and kidnapping of S. A., the Ralph’s store
clerk. Officers then executed a search warrant for the residence of Patricia Batiste
(Leslie’s mother), which was Leslie’s last known address. Leslie later turned himself
in to police.
At trial, the store clerk victim testified about the robbery at Ralph’s, and
surveillance video recovered from the store was played for the jury. Howard,3 who
was 17 years old and a senior in high school at the time of the Ralph’s robbery,
testified that she had been dating Dayvon for about two years in June 2012. Howard
met Leslie through Dayvon. Howard described Dayvon as 6’1” and slim, while Leslie
was shorter with a medium build. On the afternoon of June 27, 2012, Howard,
3
Howard was charged with armed robbery, kidnapping, and making a false
statement to police. She later pleaded guilty to the armed robbery and false statement
charges.
6
Dayvon, and Dayvon’s cousin, Shakur, were at Leslie’s house. The group discussed
robbing Ralph’s, where Howard was a frequent customer. They planned to cover their
faces with cloth torn from an old t-shirt and cover their hands with gloves. The plan
was for Howard to enter the store to check on how many people were inside, and then
call Shakur, the designated getaway driver, to let him know that the coast was clear
for Dayvon and Leslie to proceed. Dayvon’s role in the plan was “kind of the tough-
guy role, the-one-in-charge person[,]” and Leslie was “mainly supposed to get the
money.” Howard confirmed that the gun recovered from the BMW was Dayvon’s
gun, which he had with him on June 27, 2012. Leslie purchased the bullets for the
gun at Walmart on June 27, the same day as the robbery at Ralph’s, because Dayvon
was not old enough to purchase ammunition. The BMW originally belonged to Sabor
and he then gave it to Dayvon.
On the night of June 27, Howard drove her car to the Ralph’s parking lot and
entered the store and purchased a drink. Howard then called Shakur and told him that
she was headed back home. Howard recalled that Dayvon, Shakur, and Leslie split
the money taken from Ralph’s.
Leslie’s mother, Batiste, testified that after she learned that an indictment had
been issued for her son charging him with armed robbery, she contacted Leslie, who
7
was in Texas at the time, and she then drove out and brought him back to Georgia.
Leslie ultimately turned himself in to police.
At the close of the State’s evidence, Leslie moved for a directed verdict, which
the trial court denied. The jury ultimately convicted Leslie of kidnapping and armed
robbery. The trial court sentenced Leslie to a term of life imprisonment for his armed
robbery conviction, and a twenty-year term for the kidnapping conviction, to serve
ten, to run concurrently. Leslie then filed a motion for new trial. Following the
appointment of post-conviction counsel, Leslie filed an amended motion for new trial,
in which he raised several claims of ineffectiveness of trial counsel. Following a
hearing, the trial court denied Leslie’s motion. Leslie then filed a pro se notice of
appeal, and newly appointed appellate counsel later filed an amended notice of
appeal. We dismissed the appeal, finding that Leslie’s pro se notice of appeal was a
nullity and Leslie’s subsequent, counseled notice of appeal was untimely and did not
relate back in time to Leslie’s pro se filing. See Case No. A18A2139 (dismissed Aug.
1, 2018). Leslie subsequently filed a motion for an out-of-time appeal, which the trial
court granted. The instant appeal followed.
1. Leslie argues that the evidence was insufficient to support his kidnapping
conviction. Specifically, he asserts that the movement of the store clerk from one side
8
of the counter and back was merely incidental to the underlying offense of armed
robbery, and the State failed to prove the “asportation”4 or “movement” element as
required by OCGA § 16-5-40 (b).
“A person commits the offense of kidnapping when such person abducts or
steals away another person without lawful authority or warrant and holds such other
person against his or her will.” OCGA § 16-5-40 (a). Pursuant to subsection (b) of
that statute, “slight movement” shall be sufficient; provided, however:
(1) . . . any such slight movement of another person which occurs while
in the commission of any other offense shall not constitute the offense
of kidnapping if such movement is merely incidental to such other
offense.
(2) Movement shall not be considered merely incidental to another
offense if it:
(A) Conceals or isolates the victim;
(B) Makes the commission of the other offense substantially
easier;
(C) Lessens the risk of detection; or
4
“The element of ‘abducting or stealing away’ . . . [is] known as asportation[.]”
Whatley v. State, 335 Ga. App. 749, 753 (2) (782 SE2d 831) (2016) (citation omitted).
9
(D) Is for the purpose of avoiding apprehension.
OCGA § 16-5-40 (b). According to Leslie, any movement of the victim that could
have been attributed to him was slight, occurred while in the commission of the
armed robbery, and was merely incidental thereto. This contention lacks merit.
To determine whether the asportation requirement has been met, the following
four factors are to be considered:
(1) the duration of the movement; (2) whether the movement occurred
during the commission of a separate offense; (3) whether such
movement was an inherent part of that separate offense; and (4) whether
the movement itself presented a significant danger to the victim
independent of the danger posed by the separate offense.
State v. Clements, 289 Ga. 640, 647 (2) (c) (715 SE2d 59) (2011) (citing Garza v.
State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008) (superseded by statute)).
In analyzing these factors, it is not necessary that every one be satisfied
in the State’s favor in order to find asportation. Rather, the heart of
Garza’s analysis is whether the movement in question is in the nature of
the evil the kidnapping statute was originally intended to address — i.e.,
movement serving to substantially isolate the victim from protection or
rescue — or merely attendant to some other crime. This means that, for
instance, even a minimal movement that enhances the control of the
10
perpetrator over the victim will constitute asportation when it is not an
inherent part of a separate offense.
Arnold v. State, 324 Ga. App. 58, 62-63 (2) (749 SE2d 245) (2013) (citations and
punctuation omitted).
Here, the evidence of the movement of the store clerk, S. A., was sufficient to
sustain the asportation element of the kidnapping conviction. In the present case, the
evidence showed that S. A. was moved from one side of the store counter and back
at gunpoint and then forced to open the cash register.5 The victim was then forced to
the ground at gunpoint and held there while Leslie emptied the contents of the cash
register. This movement of S. A. served to make the commission of the armed robbery
substantially easier, because it provided Leslie and Dayvon access to the cash register
and its contents. Further, this movement, along with the victim being forced and held
to the ground at gunpoint isolated and concealed him, reducing the likelihood of
5
Although the State never asserted that Leslie was the gunman in the Ralph’s
robbery, he was charged as a co-conspirator and party to the crime of kidnapping.
Under Georgia law, a person may be convicted of a crime even if he does not directly
commit the crime but, instead, “[i]ntentionally aids or abets in the commission of the
crime; or . . . [i]ntentionally advises, encourages, hires, counsels, or procures another
to commit the crime.” OCGA § 16-2-20 (b) (3) and (4). And, whether a person was
a party to the crime and aided and abetted in the commission of the offense or
intentionally advised, encouraged, or counseled another, are questions for the jury.
Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).
11
detection during the robbery and permitting the completion of the crime. Compare
Taylor v. State, 344 Ga. App. 122, 131-132 (1) (g) (809 SE2d 76) (2017) (asportation
established by the movement of the victim at gunpoint from the front doorway to
interior portions of the apartment, which concealed and isolated the victim and
reduced the likelihood of detection during the commission of an armed robbery), with
Floyd v. State, 342 Ga. App. 438, 441 (1) (b) (803 SE2d 597) (2017) (asportation did
not occur when the victim, while held at gunpoint, was not forced to move from his
room while he retrieved items and placed them in a bag). Moreover, being moved
about and forced to the ground at gunpoint presented a significant danger to S. A.,
independent of the danger posed by the robbery, because it enhanced the assailants’
control over him, increased the likelihood of bodily injury, and made any potential
intervention more difficult. See Clements, 289 Ga. at 647 (2) (c).
As shown above, the movement of the victim was not merely incidental to the
armed robbery, but served to make the commission of the crime substantially easier
by concealing and isolating the victim and giving the assailants greater control. The
evidence, therefore, was sufficient to allow reasonable jurors to conclude that the
movement of the victim was not merely incidental to the robbery. See Alexander v.
State, 348 Ga. App. 859, 865 (1) (b) (825 SE2d 405) (2019) (movement of victim into
12
bathroom of apartment was not incidental to the crime of robbery, as the purpose of
that movement was to isolate or conceal the victim and make commission of the
robbery easier).
2. Leslie also argues that the post-Garza amendment to the kidnapping statute
found at OCGA § 16-5-40 (b) (2) (B) is unconstitutionally void for vagueness and
violates his due process rights because it fails to clearly specify the type of movement
that satisfies the asportation element of the statute.
As noted by the Supreme Court in its transfer order, however, Leslie did not
raise his constitutional challenge to OCGA § 16-5-40 (b) (2) (B) until his amended
motion for new trial. See Case No. S19A1505 (Aug. 19, 2019). As such, the claim
was not preserved for ordinary appellate review. See State v. Herrera-Bustamante,
304 Ga. 259, 262-263 (2) (a) (818 SE2d 552) (2018). The Supreme Court repeatedly
has held that challenges to the constitutionality of a statute must be made at the first
available opportunity and cannot be withheld until a motion for new trial. See, e.g.,
Lewis v. State, 279 Ga. 69, 70 (2) (608 SE2d 602) (2005); Hardeman v. State, 272 Ga.
361, 361 (529 SE2d 368) (2000). See also Kolokouris v. State, 271 Ga. 597, 598 (1)
(523 SE2d 311) (1999) (“A party cannot during the trial ignore what he thinks to be
an injustice, take his chance on a favorable verdict, and complain later.”) (citation and
13
punctuation omitted). Because Leslie did nothing before or during his trial to preserve
his claim regarding the constitutionality of OCGA § 16-5-40 (b) (2) (B), he is barred
from raising this issue on appeal. See Lacey v. State, 270 Ga. 37, 37 (1) (507 SE2d
441) (1998) (“Constitutional attacks must be made at the first opportunity, and it is
too late to raise such question after a guilty verdict has been returned by the jury.”)
(citation and punctuation omitted). Accordingly, Leslie’s challenge to the
constitutionality of OCGA § 16-5-40 (b) (2) (B) was untimely and does not serve as
a basis to reverse his convictions.
3. Leslie asserts that the trial court erred in admitting his mother’s prior
statement to police concerning Leslie’s involvement in the Ralph’s robbery. We
disagree.
At trial, the State called Batiste, Leslie’s mother, as a witness. Batiste admitted
that while police executed a search warrant of her house, she volunteered certain
incriminating evidence about her son to the police, including that: (1) although Leslie
had participated in the robbery with Dayvon, he did not kidnap anyone and simply
stood by the counter in Ralph’s; (2) Leslie was “high” at the time of the robbery; and
(3) Leslie had told her that he did not hit anybody and he did not have a gun on his
person during the robbery. At trial, Batiste denied that these statements were true;
14
rather she alleged she had been coerced into making them by police in the hopes of
convincing the State not to charge her son, or to charge him with a lesser crime.
A detective with the Douglasville Police Department later testified that during
the search of her home, Batiste was interviewed and she initially told the detective
that “she could not comprehend why [Leslie] had gotten involved in such a thing, and
then she uttered that he was high at the time . . . of the incident.” The detective then
retrieved his digital voice recorder from his patrol car and started recording his
conversation with Batiste. Leslie objected to the contents of the detective’s
conversation with Batiste as hearsay, which the trial court overruled. The detective
continued that Batiste again stated that Leslie was high on drugs at the time of the
robbery, he did not know that Dayvon had a gun during the commission of the
robbery, and his role in the robbery was limited to standing by the register. Leslie
renewed his hearsay objection to the admission of the detective’s recording of his
conversation with Batiste, which the trial court again overruled. Specifically the court
explained:
The [c]ourt is going to overrule the objection, and the [c]ourt is going
to admit the evidence, candidly, not for the reason cited by either side,
but based upon OCGA § 24-8-801 [d] 1 [C], and the objection was the
evidence was hearsay, and under that code section, the prior statement
15
of a witness is admissible if the declarant testifies at the trial or hearing,
and is subject to cross-examination. All right, the evidence is admitted.
The State then played the detective’s recording with Batiste.
“We review [evidentiary] ruling[s] for an abuse of discretion.” Silvey v. State,
335 Ga. App. 383, 390 (2) (a) (780 SE2d 708) (2015) (citation omitted). The crux of
Leslie’s argument is that OCGA § 24-8-801 (d) (1) (C) is inapplicable to the instant
case because Batiste’s statement to police was not “one of identification of a person
made after perceiving the person.”6 However, it is clear from the trial court’s ruling
that, although it cited the incorrect subsection, the court admitted the evidence
pursuant to OCGA § 24-8-801 (d) (1) (A). Under that section, a prior out-of-court
statement by a witness
shall not be hearsay if the declarant testifies at the trial or hearing, is
subject to cross-examination concerning the statement, and the statement
is admissible as a prior inconsistent statement or a prior consistent
statement under [OCGA §] 24-6-613[.]
6
OCGA § 24-8-801 (d) (1) (C) provides: “A statement shall not be hearsay if
the declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is one of identification of a person made
after perceiving the person[.]”
16
Here, the State sought to introduce Batiste’s recorded statement — in which
she volunteered certain incriminating information about Leslie’s role in the Ralph’s
robbery — in direct response to Batiste’s testimony at trial, in which she alleged the
statements were not true and she had been coerced into making them by police. The
recorded statement, therefore, was admissible as a prior inconsistent statement. See
McNair v. State, 330 Ga. App. 478, 482 (1) (a) (767 SE2d 290) (2014) ( “A prior
inconsistent statement of a witness who takes the stand and is subject to
cross-examination is admissible as substantive evidence, and is not limited in value
only to impeachment purposes.”) (citation and punctuation omitted). Moreover, the
prosecutor was permitted to impeach her own witness. See OCGA § 24-6-607 (“The
credibility of a witness may be attacked by any party, including the party calling the
witness.”). As a result, the trial court did not abuse its discretion in admitting the
recording of Batiste’s prior statement to police.
17
4. Next, there is no merit to Leslie’s contention that it was plain error7 for the
trial court to give the pattern jury instruction on the State’s burden of proof as it
relates to reasonable doubt.8
Generally, it is not error for a trial court to instruct the jury using the pattern
charge, where such charge is a correct statement of the law. Huckabee v. State, 287
Ga. 728, 733 (4) (c) (699 SE2d 531) (2010). In this case, the pattern charge’s mention
of jurors’ “seeking the truth” does not, as Leslie urges, dilute or cause confusion over
the State’s burden of proof and the role of the jury. In criminal cases, the factfinder
does have the task of seeking the truth. See Sherrod v. State, 280 Ga. 275, 276 (627
SE2d 36) (2006). But the jury is to determine the truth in view of the evidence,
considered in light of the court’s instructions. Mayfield v. State, 276 Ga. 324, 331 (2)
(b) (578 SE2d 438) (2003). Here, the court’s instruction properly focused the jurors
7
Because Leslie did not object to this issue below — a finding he does not
contest on appeal — the contested jury charge is subject to review on appeal for
“plain error which affects [his] substantial rights.” OCGA § 17-8-58 (b).
8
The portion of the contested pattern charge read as follows: “A reasonable
doubt means just what it says: It is that doubt of a fair-minded and impartial juror,
who is honestly seeking the truth.” See Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases (2007), § 1.20.10 (defining reasonable doubt). The trial court further
instructed that the evidence must “exclude[] all reasonable theories of innocence, and
prove the guilt of the accused beyond a reasonable doubt.”
18
on their consideration of the truth as proven by the evidence presented at trial. As a
result, Leslie’s contention is without merit.
5. Leslie argues that the trial court erred in failing to excuse a juror for cause.
“Whether to strike a juror for cause lies within the sound discretion of the trial
judge, and the trial court’s exercise of that discretion will not be set aside absent a
manifest abuse of discretion[.]” Brown v. State, 295 Ga. 804, 808 (4) (764 SE2d 376)
(2014) (citation omitted). The control of the pursuit of the impartiality of the jurors
and their ability to evaluate the case on the merits and remain free from bias and prior
inclination is within the discretion of the trial court, and will only be upset on review
in the event of manifest abuse of discretion. See Robles v. State, 277 Ga. 415, 418-
419 (3) (589 SE2d 566) (2003).
During voir dire, juror number 20 expressed concern about his ability to
comprehend the proceedings, as English was his second language. The trial court:
denied [Leslie’s] challenge as to [juror 20]. The state opposed the
challenge. The [c]ourt paid attention to [juror 20], and found that his
responses were appropriate, that, from what [the court] could tell, he
understood everything that occurred. [The court] did just give him a
special instruction that if, at any point in time, he doesn’t understand
what’s going on, he needs to bring that to our attention, and [the court
will] probably reiterate that. [The court is] not comfortable with
19
discriminating against [juror 20], who’s a man of Asian descent, simply
because he says that he struggles a little bit with English as a second
language. [The court is] satisfied, from what [the court has] heard, that
he does understand English sufficient to be able to conduct the trial as
a juror, fairly and impartially.
Although juror number 20 voiced a concern about his English skills, there is no
indication that he was unable to follow the proceedings. Moreover, the trial court
specifically instructed juror number 20 to inform the court if he experienced any
difficulty in understanding the proceedings. The record does not contain any evidence
that juror number 20 raised any such concerns subsequent to the trial court’s
directive. Based on these circumstances, we find no abuse of discretion in the trial
court’s denial of Leslie’s request to strike this juror for cause.9 See Dockery v. State,
287 Ga. 275, 276 (2) (695 SE2d 599) (2010) (no abuse of discretion where trial court
declined to strike juror who demonstrated his ability to speak and understand English
by his responses in voir dire).
9
In his brief, Leslie asserts that the trial court’s failure to strike juror number
20 for cause “was compounded by allowing a juror who knew several state actors and
a potential witness.” Leslie, however, failed to support this claim with any argument
or citation to the record, and thus, has abandoned this issue on appeal. See Court of
Appeals Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief
by citation of authority or argument may be deemed abandoned.”).
20
6. Leslie alleges that the trial court erred in admitting evidence of other
robberies as these were unrelated to the instant proceeding and unduly prejudicial.
At trial, as one of the investigating officers attempted to discuss the Dollar
General and GameStop robberies, Leslie objected to testimony about these other
crimes, arguing that they were both irrelevant and prejudicial. The State countered
that the prior crimes were relevant to show how the investigation ultimately led police
to uncover Leslie’s involvement in the Ralph’s robbery. Specifically, evidence
recovered from the BMW that had been abandoned by the suspects in the Dollar
General robbery led to the identification of Dayvon, which in turn led police to items
tied to Leslie. The trial court overruled the objection, but limited the presentation of
this evidence, to which Leslie’s counsel acquiesced, to ensure that Leslie was not
directly implicated in the GameStop or Dollar Tree incidents. In fact, three of the
investigating officers specifically stated that Leslie was not a suspect in either of the
other robberies.
“Evidentiary rulings are reviewed under an abuse of discretion standard.”
Baughns v. State, 335 Ga. App. 600, 601 (1) (782 SE2d 494) (2016) (citation and
punctuation omitted). Evidence intrinsic to the charged offense is admissible and not
subject to the limitations and prohibition on “other acts” evidence found in OCGA
21
§ 24-4-404 (b). See Smith v. State, 302 Ga. 717, 725 (4) (808 SE2d 661) (2017);
Williams v. State, 342 Ga. App. 564, 566 (1) (804 SE2d 668) (2017).
Evidence is intrinsic “if it is (1) an uncharged offense which arose out
of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.”
Brooks v. State, 298 Ga. 722, 726 (2) n. 11 (783 SE2d 895) (2016) (quoting United
States v. Utter, 97 F3d 509, 513 (II) (B) (11th Cir. 1996)); see also Williams, 342 Ga.
App. at 566 (1). Our Supreme Court has elaborated:
Evidence pertaining to the chain of events explaining the context,
motive, and set-up of the crime, is properly admitted if it is linked in
time and circumstances with the charged crime, or forms an integral and
natural part of an account of the crime, or is necessary to complete the
story of the crime for the jury.
Smith, 302 Ga. at 725 (4) (citation and punctuation omitted); see also State v. Battle,
344 Ga. App. 565, 568 (1) (812 SE2d 1) (2018).
In Williams, this Court held that evidence of a Newton County carjacking —
the second in a three-day, three-carjacking spree — was admissible intrinsic evidence
during the trial of the first and third carjackings, both of which occurred in Clayton
County. 342 Ga. App. at 567 (1). We noted that the Newton County carjacking
22
“established the complete time line of the consecutive carjackings, and items from the
first two carjackings were found in the vehicle stolen in the third hijacking.” Id. Also,
evidence from the third incident tied the defendant to the first and second incidents.
Id. Thus, we concluded, “the Newton County carjacking was inextricably intertwined
with the first and third carjackings.” Id. And in Baughns, this Court held that
evidence of all eleven crimes “committed in a similar way, within a two-week period
. . . in the same area . . . [that] included overlapping participants” was admissible
against one of three defendants who was being tried separately, even though that
defendant directly participated in only six of the eleven crimes. 335 Ga. App. at 603
(1).
Here, surveillance footage recovered from businesses adjacent to the GameStop
showed Dayvon, Sabor, and Tarver in the area mere minutes before the armed
robbery at that establishment. Officers also learned after the GameStop robbery that
Howard was Dayvon’s girlfriend. Next, items from the Ralph’s robbery were found
in the abandoned BMW that had been seen leaving the scene of the Dollar General
robbery, including the gun that had been discharged during the course of the Ralph’s
robbery. A search of Howard’s home, where Dayvon had been staying, revealed the
bag used in the Ralph’s robbery, receipts and other documents taken from the cash
23
register, and clothing worn by the assailants as depicted on surveillance video. At
trial, Howard testified as to Leslie’s involvement in the Ralph’s robbery, including
that he purchased the bullets for the gun used in the crime. Moreover, the trial court
specifically limited introduction of this evidence to avoid any implication that Leslie
participated in the other robberies, and thus its probative value was not substantially
outweighed by the danger of unfair prejudice under these circumstances. See
Williams v. State, 302 Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017) (“Intrinsic
evidence must also satisfy [OCGA § 24-4-]403.”).
In this case, the uncharged offenses were part of a crime spree committed by
a burglary crew of which Leslie was a part, even if he did not directly participate in
the GameStop and Dollar General robberies. All of the offenses involved overlapping
participants, and were linked in time and circumstance with the Ralph’s robbery.
Moreover, the evidence from the other two crimes was inextricably intertwined with
the evidence from the Ralph’s robbery, proving Leslie’s involvement with this
incident. Accordingly, based on these circumstances, the trial court did not abuse its
discretion in admitting evidence of the uncharged offenses. See Williams, 342 Ga.
App. at 567 (1); Baughns, 335 Ga. App. at 603 (1).
24
7. Leslie asserts that he received ineffective assistance of trial counsel. To
prevail on this claim, Leslie “must prove both that his trial counsel’s performance was
deficient and that there is a reasonable probability that the trial result would have
been different if not for the deficient performance.” Brewer v. State, 301 Ga. 819, 821
(3) (804 SE2d 410) (2017) (citing Strickland v. Washington, 466 U. S. 668 (104 SCt
2052, 80 LE2d 674) (1984)). If an appellant fails to satisfy either prong of this test,
we need not examine the other prong. Wright v. State, 291 Ga. 869, 870 (2) (734
SE2d 876) (2012).
(W)hile other counsel, had they represented [Leslie], may have exercised
different judgment, the fact that trial counsel chose to try the case in the
manner in which it was tried, and made certain difficult decisions
regarding the defense tactics to be employed with which [Leslie] . . .
[later disagreed], does not require a finding that the representation below
was so inadequate as to amount to a denial of effective assistance of
counsel.
Reed v. State, 285 Ga. 64, 66-67 (6) (673 SE2d 246) (2009) (citations and
punctuation omitted). Rather, to show deficient performance, “[Leslie] must
demonstrate that counsel’s performance was not reasonable under the circumstances
confronting counsel at the time, without resorting to hindsight.” Belton v. State, 270
Ga. 671, 673 (3) (512 SE2d 614) (1999) (citations and punctuation omitted). In
25
reviewing counsel’s performance on appeal, “we must apply a strong presumption
that counsel’s representation was within the wide range of reasonable professional
assistance.” Hardin v. State, 344 Ga. App. 378, 381 (1) (810 SE2d 602) (2018)
(citation and punctuation omitted).
Here, Leslie asserts that his trial counsel rendered ineffective assistance by
failing to object to hearsay testimony from the lead investigating officer when he
repeated the anonymous tipster’s out-of-court statements during his testimony.
At trial, the lead investigator testified that Leslie was identified by an
anonymous tip relayed through an e-mail. Specifically, he stated:
I received an email from someone who created a pseudo-named (sic)
account, that said, “the guy in the video you’re looking for is Tedric.”
Ted – actually it was Tedric. And he didn’t give me a whole name, but
says he matches the description, he gives me a physical description of
him as about 5’6” or so, one forty, something to that effect, and says,
you know, you can check Douglas County High School records, you’ll
find him there. So I start researching Tedric, from this pseudo-name in
the email. I find Tedric Leslie, matches the physical description of the
robber, school records indicate that he’s local, lives close by, and when
I start pulling all that together, and I actually pulled a known photograph
of him that I could come in contact with. It was a recent photograph,
recent to the robbery, and I compared the two and I thought, there’s a
great similarity here. . . . [A]nd [the informant] gave me more
26
information that I verified and panned out at that particular time, that led
me to Tedric Leslie. That’s the first time Tedric Leslie become a named
suspect in this case[.]
In its order denying Leslie’s motion for new trial, the trial court explained that it
believe[d] the evidence was inadmissible and that trial counsel should
have objected; however, again, there could be a tactical reason why no
objection was made in the context of the other overwhelming evidence
which incriminated [Leslie]. This finding is supported in the court’s
view by the fact that the tipster’s information did not incriminate
[Leslie], but a person sharing his name; it was the officer’s investigation
that caused him to become a suspect.
As we have previously explained,
(h)earsay testimony explaining an investigating officer’s conduct is
rarely admissible because the officer’s reason for initiating or continuing
an investigation is not generally a relevant inquiry at trial. In contrast,
the motive and conduct of the witness who first links a suspect directly
to the crime often are relevant.
Carter v. State, 324 Ga. App. 118, 122 (2) (a) (749 SE2d 404) (2013) (citation and
punctuation omitted). Leslie maintains that his trial counsel’s performance was
deficient because he should have objected to the anonymous tipster’s statements to
the investigating officer as inadmissible hearsay in violation of the Sixth Amendment
27
Confrontation Clause. Leslie claims prejudice because the anonymous tipster’s e-mail
was the only evidence linking him to the Ralph’s robbery, and thus, he maintains that
it is highly probable that the detective’s testimony contributed to the verdict.
In this case, even assuming that trial counsel was deficient for failing to object
to the investigating officer’s testimony about the contents of the anonymous tip,
Leslie has failed to establish how this deficiency prejudiced his defense. The jury
would have been authorized to find that Leslie participated in the Ralph’s robbery
through direct evidence unrelated to the tipster, including Howard’s testimony that
documented Leslie’s role in the robbery, Leslie’s mother’s initial statements to police
implicating him in the crime, as well as clothing recovered from the BMW matching
that worn by Leslie at the time of the robbery as shown on surveillance footage. As
a result, “[a]ssuming that an objection would have been sustained, in light of the other
testimony produced at trial, it is highly probable that the testimony that the
investigating officer decided to [look into Leslie] in response to an anonymous tip did
not contribute to the jury’s verdict.” Carter, 324 Ga. App. at 123 (2) (a) (citation and
punctuation omitted).
8. Leslie contends that his post-conviction counsel was ineffective for failing
to call any witnesses or present any evidence at the motion for new trial hearing.
28
Specifically, Leslie argues that counsel’s failure to call his trial counsel as a witness
warrants remand for a new hearing to address several of his claims pertaining to
ineffectiveness of trial counsel that were raised in his motion for new trial.
Following the entry of his judgment of conviction and sentence, Leslie filed
a motion for new trial. Leslie’s newly appointed post-conviction counsel, Elizabeth
Rogan, then filed an amended motion for new trial in which, among other things, she
raised several claims of ineffectiveness of trial counsel, alleging that counsel erred
by failing: (1) to address “irregularities” in the juror selection process; (2) to object
to the State’s use of leading questions during its examination of the store clerk victim
to establish the crime of kidnapping; (3) to object to inadmissible hearsay testimony
from the lead investigating officer; (4) to object to the admission of other robberies
as improper character evidence; (5) to request a jury instruction on the lesser-included
offense of false imprisonment; and (6) to object to the jury instruction on kidnapping.
Leslie also asserted that absent the cumulative impact of trial counsel’s errors, he
would have been acquitted of all charges.
At the motion for new trial hearing, Leslie’s post-conviction counsel, Rogan,
explained:
29
My issues are legal issues, Judge. I don’t have witnesses to put on, and
there’s – there’s not going to be an evidentiary portion of this hearing,
so the hearing will actually be quite brief, because I have two legal
issues I want to raise and perfect the record, in the event that this case
goes forward to the [C]ourt of [A]ppeals.
Rogan then presented argument with respect to the trial court’s admission of evidence
related to the other robberies; the constitutionality of the post-Garza amendment to
the kidnapping statute, OCGA § 16-5-40 (b) (2) (B); and trial counsel’s failure to
request a jury charge on the lesser-included offense of false imprisonment on the
kidnapping conviction.
In Godfrey v. State, we held that a claim that post-conviction counsel provided
ineffective assistance at the new trial phase of a criminal proceeding could, under
certain circumstances, be raised for the first time on direct appeal. 274 Ga. App. 237,
240-241 (2) (617 SE2d 213) (2005). Like Leslie, the defendant in Godfrey had been
represented by one attorney at trial, a second attorney at the new trial phase of the
proceedings, and a third attorney on appeal. Id. at 240 (2). The defendant alleged that
his second attorney provided ineffective assistance by, among other things, failing to
call the first attorney as a witness at the new trial hearing. Id. Finding the claim timely
raised, we held that “[b]ecause Godfrey’s [third attorney] did not undertake his
30
representation until after the appeal was filed, he did not have the opportunity to raise
his claim of ineffective assistance [of the second attorney] before the trial court.” Id.
at 241 (2). See generally White v. Kelso, 261 Ga. 32, 32-33 (401 SE2d 733) (1991)
(discussing application of rule, that new counsel must raise claim of previous
counsel’s ineffectiveness at first possible stage of post-conviction review, in
connection with habeas petitions and direct appeals). “Under such circumstances,
[we] will generally remand the case to the trial court for an evidentiary hearing on the
issue of ineffective assistance of [post-conviction] counsel, unless [we] can determine
from the record that the two-prong test for ineffectiveness cannot be met.” Wilson v.
State, 286 Ga. 141, 145 (4) (686 SE2d 104) (2009) (citations omitted).
Here, based on our review of the record, we conclude that Leslie cannot
establish that post-conviction counsel’s failure to call his trial counsel as a witness
at the motion for new trial hearing warrants remand to the trial court.
(a) Leslie argues that trial counsel was ineffective for failing to: (1) challenge
the trial court’s failure to strike a juror for cause; (2) object to hearsay testimony from
the lead investigating officer when he repeated the anonymous tipster’s out-of-court
statements during his testimony; and (3) object to the admission of other robberies as
improper character evidence. To the extent that Leslie asserts that post-conviction
31
counsel’s failure to call trial counsel as a witness at the motion for new trial hearing
impacted the viability of the foregoing ineffective-assistance claims, these
contentions are without merit for the reasons already discussed in Divisions 5, 6, and
7 respectively. See Chamberlain v. State, 347 Ga. App. 775, 783 (3) (b) (819 SE2d
303) (2018) (“failure to make a meritless objection cannot be evidence of ineffective
assistance of counsel”).
(b) Leslie next asserts that his post-conviction counsel erred by failing to call
trial counsel as a witness at the motion for new trial hearing to show that trial counsel
was ineffective for failing to object to the State’s use of leading questions during its
direct examination of the store clerk. Leslie highlights that establishing the amount
of movement during the crime was “critical” to sustaining his kidnapping conviction.
Specifically, he points to the State’s attempt to lead the store clerk by asking: “[a]nd
now, you were in a different part of the store, and you’re saying that he grabbed your
neck again, and told you to go to the register?” As previously discussed in Division
1, however, there was sufficient evidence to establish the asportation element of the
kidnapping charge apart from this limited testimony. Moreover, Leslie has failed to
show how counsel’s failure to object to the State’s use of leading questions in its
examination of the store clerk prejudiced his case, given the same facts were depicted
32
on the surveillance camera footage that was played for the jury at trial. The jurors
were therefore able to determine for themselves whether the assailants’ conduct
depicted in the Ralph’s surveillance video matched the store clerk’s trial testimony.
See Smith v. State, 257 Ga. App. 595, 597 (1) (571 SE2d 817) (2002) (evidence,
which included still photograph of gunman derived from bank surveillance footage
that was shown to the jury, was sufficient to corroborate accomplice’s testimony
implicating defendant in offenses). As such, this claim is without merit.
(c) Leslie asserts that his post-conviction counsel should have called his trial
counsel as a witness as his motion for new trial hearing to show that trial counsel was
ineffective for failing to request a jury charge on false imprisonment,10 as a lesser-
included offense, because the State failed to meet its burden to prove the asportation
element required to sustain his kidnapping conviction. Leslie raised this claim in his
motion for new trial, and argued at the hearing that his trial counsel should have
requested the “lesser-included offense of false imprisonment, which, if anything, was
tailored more to what actually happened in this case.”
10
See OCGA § 16-5-41 (a) (“A person commits the offense of false
imprisonment when, in violation of the personal liberty of another, he arrests,
confines, or detains such person without legal authority.”).
33
As previously discussed in Division 1, however, the State presented sufficient
evidence to prove the “asportation” element, as required under OCGA § 16-5-40 (b),
to support Leslie’s kidnapping conviction. As a result, we find no support for this
ineffective-assistance claim. See Davis v. State, 280 Ga. 442, 443 (2) (629 SE2d 238)
(2006) (“In evaluating an attorney’s performance, there is a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Where trial counsel does not testify at the motion for a new trial hearing, it is
extremely difficult to overcome this presumption.”) (citation and punctuation
omitted).
(d) Finally, Leslie contends that his post-conviction counsel should have called
his trial counsel as a witness at his motion for new trial hearing to demonstrate that
his trial counsel rendered ineffective assistance by failing to object to the jury charge
on kidnapping. Specifically, Leslie contends that OCGA § 16-5-40 (b) (2) (B) is
“unconstitutionally void for vagueness,” and “[c]ounsel’s failure to mount a proper
challenge amounted to ineffective assistance of counsel.” Leslie, however, has failed
to point to any controlling precedent addressing the constitutionality of the post-
Garza amendments to the kidnapping statute. Accordingly, “as the objection [Leslie]
now asserts that trial counsel should have made has no basis in existing law, failure
34
to make the objection cannot serve as a basis for a claim of ineffective assistance of
counsel.” Hayes v. State, 298 Ga. 98, 104 (2) (b) (779 SE2d 609) (2015).11
(9) To the extent Leslie asserts that his post-conviction counsel was ineffective
for failing to raise additional issues pertaining to the ineffectiveness of trial counsel
in his motion for new trial, that argument does not provide a basis for remand.
Leslie’s post-conviction counsel raised the issue of Leslie’s trial attorney’s
ineffectiveness in the motion for new trial; thus, any allegations of ineffective
assistance not raised in that motion are procedurally barred. Upshaw v. State, 257 Ga.
App. 199, 201-202 (4) (570 SE2d 640) (2002). “And [Leslie] cannot resuscitate these
arguments by ‘bootstrapping’ them to a claim of ineffective assistance of [post-
conviction] counsel.” Godfrey, 274 Ga. App. at 242 (2) (citation omitted). “Once a
11
And even if the Supreme Court renders an opinion on the constitutionality
of OCGA § 16-5-40 (b) (2) (B), it would not impact our analysis of the effectiveness
of trial counsel’s performance in the instant case as “there is no general duty on the
part of defense counsel to anticipate changes in the law[.]” Lyman v. State, 301 Ga.
312, 321 (3) (a) (800 SE2d 333) (2017) (citation omitted). See also Rhoden v. State,
303 Ga. 482, 486 (2) (a) (813 SE2d 375) (2018) (counsel is not obligated to argue
beyond existing precedent and “there is no requirement for an attorney to
prognosticate future law in order to render effective representation”) (citation and
punctuation omitted).
35
claim is procedurally barred, there is nothing for this Court to review.” Upshaw, 257
Ga. App. at 202 (4).
Accordingly, we will not consider Leslie’s argument that his post-conviction
counsel failed to raise additional claims related to trial counsel’s ineffectiveness in
the motion for new trial, and thus, decline to order the remand of this case for further
proceedings on this issue.
Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.
36