SECOND DIVISION
BARNES, P. J.,
RICKMAN 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, 2017
In the Court of Appeals of Georgia
A16A1654. TRAN v. THE STATE.
RICKMAN, Judge.
Nam Nhu Tran was tried by a jury and convicted of two counts of armed
robbery and one count each of aggravated sexual battery and possession of a firearm
during the commission of a felony.1 Following the denial of his motion for new trial,
Tran appeals. He contends that the trial court erred in its response to a question from
the jury and that his trial counsel was ineffective in numerous respects. For reasons
that follow, we reverse.
1
Tran was indicted for five counts of armed robbery, three counts of
aggravated sexual battery, and one count of possession of a firearm during the
commission of a felony. The trial court granted a directed verdict as to three of the
armed robbery counts and two of the aggravated sexual battery counts because the
State failed to present any evidence as to those counts.
Viewed in the light most favorable to the jury’s verdict,2 the evidence shows
that at approximately 1:00 a.m. on February 6, 2013, two men entered a karaoke club
on Buford Highway, wearing surgical masks and carrying guns. A female club
manager testified that the armed men forced her to lie face down on the floor and one
of the men put his finger in her vagina. A male club manager testified that a man
pointed a gun at him, forcing him to lie down, and took his debit card and some cash.
The male manager testified that the men also took an almost full case of Johnny
Walker Black Scotch and two or three bottles of Crown Royal Special Reserve. After
one of the men left, the second man tried to get the male manager to open the register,
but it would not open because the power was off. As soon as the second man left, the
male manager went to the front door and saw a silver Acura with tinted windows
pulling out of a parking space. He testified that the license plate was covered and was
not visible. Neither of the managers saw the men’s faces clearly.
At approximately 1:24 a.m., a DeKalb County police officer received a call
about a suspect vehicle and three or four minutes later, as he was driving to the
incident location, he saw a silver Acura with tinted windows. The officer followed
the Acura and noticed that the driver was driving erratically. When the officer
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
activated his blue lights, the Acura stopped in a parking lot. As soon as the officer
stopped his vehicle, the passenger got out of the Acura and ran. The passenger was
never found. After backup arrived, the officer ordered the driver, identified as Tran,
out of the Acura and placed him in handcuffs. Tran told the officer that “there was a
gun” in the Acura. The gun belonged to Tran. A subsequent search of the Acura
revealed a case of Black Label liquor, a bottle of Crown Royal, and various items of
clothing.
A detective with the DeKalb County police department responded to the
robbery call at the karaoke club. He took statements from five witnesses while he was
at the scene. The male club manager described one of the suspects as an Asian male,
age 20 to 30, height of 5’6” to 5’7,” weight of 160 pounds, wearing jeans and a white
mask, and armed with a silver gun. He described the second suspect as an Asian male,
unknown description, wearing a white mask, and armed with a gun.3 The female club
manager described one of the suspects as an Asian male, age 20 to 30, height of 5’6”
to 5’7,” wearing a white mask and dark hat, and armed with a dark-colored handgun.
3
In his 911 call, the male manager described the attackers as black men based
on “the way they talk,” but later changed his description based on conversations with
“the guys who got robbed with me” and the fact that he never clearly saw the
perpetrators’ faces or their hands.
3
Tran testified at trial to the following. He is Vietnamese and is 5’5” tall and
weighs about 155 pounds. On February 6, 2013, he went to a restaurant for a late
dinner with friends and after eating, they decided to go to the karaoke club. He left
the restaurant by himself, drove to the club, and waited outside his car for his friends
to arrive. While he was waiting, a man he did not recognize pointed a gun at him and
told him to get in the car and drive. The man was wearing a mask and was carrying
a box and some bags that he put into Tran’s car. Tran drove where he was told to go
and, approximately three to four minutes later, he saw a police vehicle behind him
with its blue lights illuminated. At that point, Tran stopped the car. The man took a
couple of bills from the car’s glove compartment that had Tran’s address on them and
told him not to say anything about the incident or he would kill him.
Tran testified that when the man got out of his car and ran, he was in shock and
“so scared” because four or five years earlier he had been robbed at his business, a
pool hall, in Clayton County. Tran testified that he reported that incident to the police
and was subpoenaed to appear in court, but before he was scheduled to appear,
someone placed a note on his car telling him not to show up for court. Tran told the
police about the note, but they did not do anything. After that happened, he purchased
a gun.
4
1. Tran contends that the trial court erred in its response to the following
question from the jury: “If, in the case that the defendant was one of the robbers, but
the State has not proven that he was the one who committed the sexual battery, or that
he even had knowledge that it was occurring at the time, is he still party to the
crime?” Before responding to the jury, the trial court stated, “I’ll just tell them that’s
for them to decide,” and asked if there were any objections to his proposed response.
Tran’s counsel stated that he had no objection. The trial court then told the jury,
“That’s for you to decide.” There was no objection following the court’s response to
the jury. “[Tran]’s failure to object to the [court’s response], despite having had the
opportunity to do so, constitutes a waiver.” (Citations omitted.) Glover v. State, 285
Ga. 461, 463 (3) (678 SE2d 476) (2009). Having failed to preserve this objection for
appellate review, Tran “is entitled to reversal only if the jury instruction constituted
plain error, which will only be found if the jury instruction was erroneous; the error
was obvious; the instruction likely affected the outcome of the proceedings; and the
error seriously affects the fairness, integrity, or public reputation of judicial
5
proceedings.” (Footnotes and punctuation omitted.) Lafavor v. State, 334 Ga. App.
125, 134-35 (8) (778 SE2d 377) (2015).4
Tran contends that the trial court should have answered the jury’s question with
a simple “no.” He argues that the court’s response invited the jury to disregard the law
“and left the jury free to decide Mr. Tran’s guilt or innocence not on the law, but
simply “up to” the jury.”
As a general rule, “[a] trial court has a duty to recharge the jury on issues for
which the jury requests a recharge[, but . . . ] where no such request has been made,
the need, breadth, and formation of additional jury instructions are left to the sound
discretion of the trial court.” (Citation and punctuation omitted.) Leeks v. State, 296
Ga. 515, 521 (4) (769 SE2d 296) (2015). Here, the jury did not request a recharge,
and “[t]he trial court had discretion to decline to answer the jury’s question directly.”
Redding v. State, 296 Ga. 471, 473 (2) (769 SE2d 67) (2015). Further, “[w]e have
4
Although Tran does not acknowledge that our review is limited to plain error,
“we will review properly enumerated and argued claims of jury instruction error
regardless of whether the appealing party specifically casts the alleged infirmity as
‘plain error,’ [but] parties should be advised that the hurdle to establishing plain error
is high . . . and therefore that the failure to specifically articulate how the alleged error
satisfies this high standard increases the likelihood that their claims in this regard will
be rejected.” State v. Kelly, 290 Ga. 29, 32 (1) n.2 (718 SE2d 232) (2011).
6
never held . . . that the court must engage in a question and answer session with the
jury or instruct the jurors individually on how to apply the law to the facts.” Kimmel
v. State, 261 Ga. 332, 335 (3) (404 SE2d 436) (1991). The trial court had already
instructed the jurors on parties to a crime, following the pattern charge, as well as the
burden of proof, witness credibility, direct and circumstantial evidence, intent, and
the elements of aggravated sexual battery. The jurors were also told that they were
bound by the law given in the court’s instructions, a copy of which was provided to
each juror, and that they had a duty and responsibility to apply that law to the facts
of the case, which they must ascertain from all the evidence presented.5 Reviewing
the trial court’s charges as a whole, we conclude that the court’s response to the jury
was not clearly erroneous and, contrary to Tran’s assertion, did not invite the jury to
disregard the law. See Aikens v. State, 297 Ga. 229, 231 (2) (773 SE2d 229) (2015);
see also Lafavor v. State, 334 Ga. App. at 135 (8).6
5
There were no objections to the charge.
6
Because of our finding that Tran has not met the plain error criteria, we need
not reach the issue of whether trial counsel’s statement that the defense had no
objections to the court’s proposed response amounts to an affirmative waiver. See
State v. Kelly, 290 Ga. at 34 (2) (b), n.5.
7
2. Tran contends that his trial counsel was ineffective for failing to object in
several instances, failing to request a jury charge on his sole defense, and opening the
door to damaging testimony.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must show that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LEd2d 674) (1984). The criminal defendant must overcome
the strong presumption that trial counsel’s conduct falls within the broad range of
reasonable professional conduct and that, under the circumstances, the challenged
action might be considered sound trial strategy. Id. at 689-690 (III) (A). As an
appellate court, we “accept the trial court’s factual findings and credibility
determinations unless clearly erroneous, but we independently apply the legal
principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277
Ga. 75, 76 (586 SE2d 313) (2003). In this division, we address the first prong of the
Strickland test and in Division 3 we address the second prong, looking at the
combined effect of trial counsel’s errors to determine whether those errors prejudiced
the defense.
8
(a) Tran contends that his trial counsel was ineffective for failing to object to
the trial court’s response to the question from the jury addressed in Division 1.
Because there was no plain error in the trial court’s response to the jury, when
considered in connection with the complete charge given by the court, Tran cannot
show ineffective assistance of counsel based on his counsel’s failure to object to the
court’s response. See Dority v. State, 335 Ga. App. 83, 104 (4) (g) (780 SE2d 129)
(2015); see also Thomas v. State, 297 Ga. 750, 755 (5) (778 SE2d 168) (2015);
Hughley v. State, 330 Ga. App. 786, 794 (4) (c) (769 SE2d 537) (2015).
(b) Tran contends that his trial counsel was ineffective for failing to request a
jury instruction on coercion, his sole defense. When asked about his failure to submit
any proposed jury charges, trial counsel testified:
I used to submit jury instructions, you know, in almost all of my trials.
And at this point over the last few years I’ve since not submitted any
jury instructions for any trials, assuming that the judge follows pattern.
And so I generally will ask at the beginning of the trial if the judge
follows pattern. And if that’s the case, I will generally will not submit
any, because from my experience my charges don’t come in anyway. So
in long or in short, the answer would be no, I did not submit any in this
and I generally don’t and have not the last few years.
9
Putting aside our concerns about trial counsel’s general practice with respect
to jury instructions, we must determine whether counsel’s failure to request an
instruction on coercion constituted ineffective assistance. Pursuant to OCGA § 16-3-
26, “[a] person is not guilty of a crime, except murder, if the act upon which the
supposed criminal liability is based is performed under such coercion that the person
reasonably believes that performing the act is the only way to prevent his imminent
death or great bodily injury.” To assert a statutory affirmative defense, such as
coercion, the defendant must admit all of the elements of the crime charged except
intent. Mathis v. State, 299 Ga. App. 831, 842 (5) (684 SE2d 6) (2009).
Here, Tran denied any knowledge of or participation in the armed robbery and
denied knowing the person who pointed a gun at him and told him to drive. He was
never asked whether he had participated in or had any knowledge of the aggravated
sexual battery. Accordingly, Tran was not entitled to a jury instruction on coercion
and therefore cannot show that counsel’s failure to request such a charge constituted
ineffective assistance. See Olarte v. State, 273 Ga. App. 96, 102 (2) (d) (614 SE2d
213) (2005); see also Boccia v. State, 335 Ga. App. 687, 693 (1) (b) (ii) (782 SE2d
792) (2016).
10
(c) Tran contends that his trial counsel was ineffective for failing to object to
questions that commented on his right to remain silent and his right to counsel.
On cross-examination, after Tran testified that he spoke to his girlfriend from
the jail, the State asked him whether his girlfriend had asked him what had happened.
He replied, “Yes, but I didn’t want to say anything while I was in jail because I didn’t
have an attorney at the moment. . . . And before you make a call, they said they were
going to record your call, so I didn’t want to say anything.” The following then
transpired:
STATE: I guess that’s really the root of the issue. Why would you need
an attorney? If you’re an innocent bystander standing in a parking lot,
who’s been held up and roped into helping with an armed robbery, why
would you need an attorney?
TRAN: They took me in immediately and locked me up.
STATE: Okay. And at any point did you say, hey, man, I was on the
phone with my girlfriend. I was smoking a cigarette. This guy came up
behind me and put a gun in my face. I did what he told me to do because
I was scared.
TRAN: He just locked me up, sir.
STATE: Let me ask you this. Would it seem a viable option to you to
explain to the police what had happened without identifying the
attacker? Therefore, not putting yourself in any danger. Could you have
said, hey, man, a guy came up to me, had a mask on, put a gun in my
back and made me be his getaway driver?
11
At that point, Tran’s trial counsel objected based on speculation. Although the trial
court sustained the objection, the questioning continued:
STATE: Did it occur to you to say something like that?
TRAN: Not at the moment.
STATE: Did it occur to you at any point to give any information to the
police that would clear you of these terrible charges?
TRAN: Yes, but I was scared at the moment, yes.
STATE: You were scared?
TRAN: Yes.
STATE: Did you ever try to think of a way to give police information
that would clear your name without exposing who actually did the
crime?
TRAN: Yes, once I had an attorney, yes.
STATE: You did. And did you provide that information?
TRAN: To whom?
STATE: To the police who have locked you up for armed robbery and
sexual battery?
TRAN: No.
STATE: You never gave them any information to clear your name?
TRAN: No.
At the motion for new trial hearing, trial counsel testified that the information
that came out on cross-examination was damaging to the defense and that more
objections should have been made, but that things were going so quickly that he was
12
not able to make every objection. When asked why he did not object when the State
continued the same line of questioning after the trial court had sustained his objection
to it, trial counsel responded:
the only thing I can think of is, you know, when trying cases like this or
really any case, after an objection is sustained, it’s almost natural to
think that the next question is not going to be, you know, in violation of
the evidentiary rules as far as, you know, whatever the objection may be.
So I think I was just naturally assuming that the next question would be
legitimate, and I couldn’t get the objection in in time.
“[T]he use for impeachment purposes of [a defendant’s] silence, at the time of
arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the
Fourteenth Amendment.” Doyle v. Ohio, 426 U. S. 610, 619 (II) (96 SCt 2240, 49
LEd2d 91) (1976). And “although the improper references at issue in Doyle
concerned only the defendants’ post-Miranda silence, the prohibition extends equally
to impeachment use of a defendant’s post-Miranda invocation of the right to
counsel.” Hill v. Turpin, 135 F3d 1411, 1414 (11th Cir. 1998). Defense counsel’s
failure to object to such comments would amount to deficient performance. See Hines
v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006).
13
To the extent that the State’s questions related to Tran’s silence before he
received Miranda warnings, the Georgia Supreme Court has consistently held since
1991 that a comment upon a defendant’s silence or failure to come forward will not
be allowed even where the defendant has not received Miranda warnings and where
he takes the stand in his own defense. Sanders v. State, 290 Ga. 637, 640 (4) (723
SE2d 436) (2012); Reynolds v. State, 285 Ga. 70, 71-72 (673 SE2d 854) (2009);
Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), recognized as
overruled on other grounds in Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155)
(1999).7 Accordingly, “it would be improper for the prosecution to comment upon a
7
We note that it is unclear whether the bright-line evidentiary rule enunciated
in Mallory remains applicable because Mallory was based on former OCGA § 24-3-
36 (“[a]cquiescence or silence, when the circumstances require an answer, a denial,
or other conduct, may amount to an admission”) and the Supreme Court of Georgia
has expressed no opinion about the continuing validity of Mallory’s evidentiary
ruling under the new Evidence Code. See Kennebrew v. State, 299 Ga. 864, 872 (2)
(a) (2), n.4 (792 SE2d 695) (2016). This case was tried in February 2015, and
therefore Georgia’s new Evidence Code, effective for trials conducted on or after
January 1, 2013, was applicable. For now, we continue to follow the precedent
established by the Supreme Court of Georgia on this issue. See Ga. Const. art. VI, §
6, ¶ VI (The decisions of the Supreme Court shall bind all other courts as precedents).
We also note that Eleventh Circuit cases interpreting Federal Rule of Evidence 801
(d) (2) (B), the federal counterpart to OCGA § 24-8-801 (d) (2) (B), have held that
the failure to respond to a statement that, under the circumstances, an innocent
defendant would normally be induced to respond, may constitute an adoptive
admission, if “there are sufficient foundational facts from which the jury could infer
that the defendant heard, understood, and acquiesced in the statement.” See United
14
criminal defendant’s silence or failure to come forward even when he takes the
witness stand.” Doyle v. State, 291 Ga. 729, 733 (3) (733 SE2d 290) (2012); see also
Tucker v. State, 228 Ga. App. 321, 324 (1) (b) (491 SE2d 420) (1997) (fact that
defendant invoked his rights to counsel and silence should not have been admissible).
And defense counsel’s failure to object to such comments would amount to deficient
performance. Dumas v. State, 337 Ga. App. 124, 127 (1) (786 SE2d 508) (2016).
Under either scenario, Tran’s counsel opened the door to allow the State to
pursue this line of questioning by asking Tran on direct examination whether his prior
encounter with the police had “anything to do with why you may not have said
anything to the police at this point?” See Burney v. State, 244 Ga. 33, 39 (4) (257
SE2d 543) (1979); see also Doyle, 291 Ga. at 733 (3) (where “defendant opens the
door to this line of questioning during direct examination, the prosecution has every
right to pursue a thorough and sifting examination and to comment upon it during
closing argument”). Under the circumstances, any objection to the prosecution’s
comment on Tran’s silence would have been properly overruled. “Because the failure
to make a meritless objection cannot constitute ineffective assistance, we conclude
States v. Jenkins, 779 F2d 606, 612 (11th Cir. 1986), citing United States v. Carter,
760 F2d 1568, 1579 (VII) (A) (11th Cir. 1985).
15
that trial counsel was not ineffective for failing to object to the comment upon
[Tran]’s silence.” (Citation omitted.) Doyle, 291 Ga. at 733 (3); see Fullwood v. State,
304 Ga. App. 341, 343 (3) (696 SE2d 367) (2010).
(d) Tran contends that his trial counsel was ineffective for failing to object to
hearsay. The State called a Clayton County police officer as a rebuttal witness and he
testified that, at the prosecutor’s request, he had checked Clayton County’s database
and found no record of Tran being a victim of a crime in Clayton County. The officer
also testified that he checked with the City of Riverdale and they did not have any
record in their database of Tran being a crime victim and that they had specifically
checked the only Clayton County pool hall within the city limits and found no history
of Tran being a victim there. At the motion for new trial hearing, trial counsel
testified that the officer’s testimony hurt Tran and that he should have objected to it,
but he did not recall whether he considered objecting.
(i) The officer’s testimony about his search of the Clayton County database was
admissible to prove the absence of a public record or entry under OCGA § 24-8-803
(10), which provides that the following shall not be excluded by the hearsay rule,
even though the declarant is available as a witness:
16
To prove the absence of a record, report, statement, or data compilation,
in any form, or the nonoccurrence or nonexistence of a matter of which
a record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office, evidence in the form of
a certification in accordance with Code Section 24-9-902, or testimony,
that diligent search failed to disclose the record, report, statement, or
data compilation, or entry[.]
The officer testified that he helps to maintain the records of crimes that occur
in Clayton County and that he regularly accesses the database to get information
about victims and defendants. He further testified that he checked the database using
several versions of Tran’s name, as shown on the criminal history report, as well as
Tran’s birth date and his driver’s license number, but found no record of him being
a victim of a crime in Clayton County. Based on the language of OCGA § 24-8-803
(10) and guidance from federal courts construing a very similar statute, Federal Rule
of Evidence 803 (10), the officer’s testimony about the Clayton County records fell
within the hearsay exception.8 See United States v. Parker, 761 F3d 986, 992 (III)
8
It does not appear that the Georgia appellate courts have previously applied
OCGA § 24-8-803 (10). Because OCGA § 24-8-803 mirrors Rule 803 of the Federal
Rules of Evidence, we may look to federal case law for guidance in interpreting our
statute. See Ciras, LLC v. Hydrajet Technology, LLC, 333 Ga. App. 498, 500 (773
SE2d 800) (2015).
17
(9th Cir. 2014) (Rule 803 (10) does not specify that the testimony must be from the
custodian of records); United States v. Valdez-Maltos, 443 F3d 910, 911 (5th Cir.
2006) (agent not required to specifically testify that a “diligent search failed to
disclose the record” as long as the testimony and the relevant circumstances reflected
an adequate search). Because a hearsay objection to this testimony would have been
fruitless, Tran’s claim of ineffective assistance in this regard is without merit. See
White v. State, 283 Ga. 566, 569-570 (4) (662 SE2d 131) (2008).
(ii) With respect to the City of Riverdale records, however, the officer’s
testimony was not admissible to show the absence of a public record or entry. The
officer did not testify that he had any knowledge of the City of Riverdale database or
provide any information about who conducted the search or how it was conducted.
“In failing to raise an objection to this inadmissible hearsay, the performance of
[Tran]’s trial counsel fell below an objective standard of reasonableness under the
first prong of Strickland.” (Citations omitted.) Forde v. State, 289 Ga. App. 805, 808-
809 (1) (658 SE2d 410) (2008).
(e) Tran contends that his trial counsel was ineffective for failing to object to
questions from the State that improperly impeached his testimony. During the State’s
cross-examination of Tran, the prosecutor asked him about the threatening note he
18
had received on his car after his business had been robbed and then offered, “would
it surprise you that we had a Clayton County investigator run your name, and your
name as listed here, Nam Nhu Tran, appears nowhere in any crime report ever in
Clayton County; does that surprise you?” And later in the cross-examination, the
following transpired:
STATE: My understanding is that you had two interactions with the
court system; is that correct? You reported it the first time you called
and reported it?
TRAN: Yes.
STATE: Which we can’t find a record. . . .
At the motion for new trial hearing, trial counsel agreed that it would have been
helpful to keep these questions out and that he might have considered objecting, but
it might be that things were going too fast for him to object.
“A witness may be impeached by disproving the facts testified to by the
witness.” OCGA § 24-6-621. And if an accused in a criminal proceeding chooses to
testify, he or she shall be sworn as any other witness and, with certain exceptions,
may be examined and cross-examined as any other witness. OCGA § 24-5-506 (b).
It is improper, however, to confront or attempt to impeach a witness with facts that
are not within his personal knowledge. See Cowards v. State, 266 Ga. 191, 194 (3)
19
(a) (465 SE2d 677) (1996) (improper to cross-examine police officer regarding facts
not personally known to the officer, but contained in the case investigation file). The
prosecutor’s impeachment of Tran with a search performed by a Clayton County
investigator of which Tran had no knowledge was therefore improper. And trial
counsel’s failure to object to the improper questioning constituted deficient
performance. See Ward v. State, 304 Ga. App. 517, 527 (5) (a) (696 SE2d 471)
(2010) (failing to object to hearsay statement alone was deficient performance).
(f) Tran contends that his trial counsel was ineffective when he opened the door
to damaging testimony that was directly contradictory to Tran’s testimony.
While cross-examining the DeKalb County detective who searched Tran’s
vehicle, trial counsel asked if the detective had been provided an opportunity to
interrogate Tran. The following then transpired:
DETECTIVE: I did. We actually spoke twice. The first time we talked,
he didn’t want to talk. But then the second time he was going to his
probable cause hearing or his preliminary hearing. And he had a
different lawyer before you at the time and he wanted to talk to us then.
COUNSEL: Is this when his bond was going on?
DETECTIVE: No, it wasn’t his bond. It was a preliminary hearing.
COUNSEL: Okay.
DETECTIVE: And he wanted to talk to us then.
COUNSEL: And did he talk to you?
20
DETECTIVE: He did. His lawyer told us that he wanted to speak to us
and give us the actual person that was in the car that night. But he didn’t
- - he basically retracted his statement at some point and said he didn’t
want to talk anymore because he feared for his family getting killed.
COUNSEL: All right. So the first time you confronted him, he said I
don’t want to say anything, correct?
DETECTIVE: Correct.
COUNSEL: The second time he said, okay, I might be able to tell you
a little bit more about kind of who was in the car or whatnot, but then
said, you know what, I’m just afraid for my life at this point, correct?
DETECTIVE: Correct.
On re-direct, the State asked the detective, “Without speculating, what
information was indicated to you the defendant could provide?” Trial counsel
objected based on hearsay, attorney-client privilege, and pretrial negotiations. The
trial court overruled the objection, ruling that trial counsel had “opened the door,” and
the detective testified that he understood that Tran was going to tell him who was in
the car with him that night and also provide details about the crime that was
committed. The detective further testified that he got the impression that Tran was
familiar with the person who was in the car with him.
21
At the motion for new trial hearing, trial counsel testified that he does not recall
why he introduced the testimony if he thought it was objectionable. He further stated:
I think what ended up happening was when I questioned the investigator
about what was said during the investigation, I was assuming that he
was going to give me information that I knew he was going to say. And
unfortunately he said something different. And I didn’t anticipate what
he was going to say. And so as it went through, it was damaging to Mr.
Tran’s case. And I believe the only way – and, again, I’m just almost
internally speculating because I can’t remember everything play by play
as to why I did it, but I’m thinking, just knowing myself, I objected
further to try to cut it off because it’s already done too much damage at
that point.
Trial counsel “expected the detective to say that Nam Tran was supposed to - - he
knows the individuals potentially that were involved and he’s just scared.” Trial
counsel acknowledged that the detective’s testimony contradicted Tran’s testimony
that he did not know the person who got in his car that night and that he did not offer
to provide the detective with information about that person.
We recognize that “[t]he scope of cross-examination is grounded in trial tactics
and strategy, and will rarely constitute ineffective assistance of counsel. (Citations
and punctuation omitted.) Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90)
(2003). But here, to the extent trial counsel may have pursued this line of questioning
22
based upon trial strategy, we find that it was not a reasonable decision a competent
attorney would have made when the defense theory was that Tran was a victim and
did not know the man who pointed a gun at him and forced him to drive. See Cabrera
v. State, 303 Ga. App. 646, 652 (2) (694 SE2d 720) (2010); see generally Dority v.
State, 335 Ga. App. at 100 (4) (d) (i).
3. We now determine if trial counsel’s deficiencies prejudiced the defense, and
in doing so, we must consider the combined effect of all of counsel’s errors. See
Schofield v. Holsey, 281 Ga. 809, 811, n.1 (642 SE2d 56) (2007). The relevant
question “[w]hen a defendant challenges a conviction is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U. S. 668 at 695 (III) (B). “In making this
determination, [we] must consider the totality of the evidence before the judge or jury
[],” Id., reviewing the record de novo and weighing the evidence as we expect
reasonable jurors would have done. See Woodard v. State, 296 Ga. 803, 810 (3) (b),
n.5 (771 SE2d 362) (2015). “[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming
record support.” Strickland, 466 U. S. at 695-696 (III) (B); see State v. Crapp, 317
Ga. App. 744, 748 (2) (732 SE2d 806) (2012) (“In close cases, where the evidence
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presented by the state is thin, mistakes made by trial counsel take on greater
significance.”) (citations and punctuation omitted).
Here, we consider trial counsel’s errors in the context of a case where the jury
heard the prosecutor essentially testify that Tran would not need an attorney if he was
an innocent bystander and then question Tran at length about why he never gave the
police information that would have cleared him of these charges. Trial counsel’s
errors introduced evidence into the record that directly contradicted Tran’s trial
testimony and allowed the admission of other evidence that further challenged Tran’s
credibility, the combined effect of which was to severely undercut the defense’s case.
And all of this occurred in a case where the evidence of guilt was not overwhelming.
Under these circumstances, we conclude that Tran has shown the required
prejudice to prevail on his ineffective assistance claim. See Kennebrew v. State, 299
Ga. 864, 873-74 (2) (b) (792 SE2d 695) (2016); Fisher v. State, 299 Ga. 478, 486 (2)
(b) (788 SE2d 757) (2016). Tran’s convictions must therefore be reversed. Because
the evidence was sufficient to support the verdict, he can be retried. See Kennebrew,
299 Ga. at 874 (2) (c).
Judgment reversed. Barnes, P. J., and Self, J., concur.
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