Reconsideration denied July 23, 2015 -- Cert. applied for.
Effective assistance of counsel. Richmond Superior Court. Before Judge Brown.
Harvey S. Wasserman, for appellant.
Ashley Wright, District Attorney, Joshua B. Smith, Falin R. Syms, Assistant District Attorneys, for appellee.
BARNES, Presiding Judge. Ray and McMillian, JJ., concur.
Barnes, Presiding Judge.
A jury convicted James Pryor of attempted armed robbery and possession of a firearm during the commission of a crime, and the trial court denied his motion for new trial. On appeal, he argues that he was denied his constitutional right to counsel because his trial counsel had an actual conflict of interest and that his counsel was ineffective for failing to object to certain testimony
and evidence. For the reasons that follow, we affirm.
1. " On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine [333 Ga.App. 409] only whether, after viewing the evidence in the light most favorable to the prosecution, a " rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
So viewed, the evidence shows that as three men were preparing to leave the parking lot of a club that had just closed at 4:00 a.m., Pryor, Derrick Brown, and Reginald Frails approached their car, with Pryor " leading the pack." The first victim was already in the back seat, and the other two victims were standing on the driver's side of the car. Pryor pulled out a handgun and asked the second victim to empty his pockets, and after the second victim protested that he had nothing, Pryor stuck his head into the car through the open driver's door and told the first victim inside to empty his pockets. Pryor pointed his gun at the first victim inside the car, but when Pryor turned to look at Brown and Frails pushing up against the third victim outside the car, the first victim picked up his .48 caliber semi-automatic handgun from the floorboard and began firing at Pryor. Pryor dropped his weapon, a .38 caliber revolver, at the feet of the second victim, who picked it up and began firing at all three robbers, all of whom were running away when they were hit by either the .38 or the .48 caliber gun. An off-duty deputy sheriff working security at the club arrived on the scene almost immediately, cuffed the victims, and placed them in separate patrol cars.
Emergency medical technicians were called to the scene and Pryor, Frails, and Brown were taken to the hospital and the three victims were taken to the station. The lead investigator went to the hospital and talked to Brown, who had been shot in the knee and whose responses to questions were " elusive" and unclear. Frails, who had been shot in the buttocks, refused to talk to the investigator and left the hospital against medical advice while the investigator went to see if he could talk to Pryor. Pryor had been sedated, was unable to respond to the investigator, and appeared to have been shot in his neck or the top of his chest.
The investigator then interviewed the three victims at the station. He described them as " calm and collected" and " very precise." The first victim, who had been seated in the car, had a valid carry permit for the semi-automatic .48 caliber handgun he shot at Pryor. The victims' virtually identical statements coupled with evidence from the scene led the police to re-categorize the three men at the station from suspects to victims. Frails, who had been clutching two plastic bags containing twenty-two grams of cocaine when he arrived at the emergency room, was subsequently arrested at his last known address for possession with intent to distribute. Frails subsequently [333 Ga.App. 410] pled guilty to criminal attempt to commit armed robbery and possession of cocaine with intent to distribute.
None of the victims could identify Frails or Brown from a photographic lineup. The victims were not presented with a lineup containing Pryor's photograph because the investigator did not have one available, but two of them identified Pryor at trial as the man with the handgun who attempted to rob them. Frails testified at trial that he did not remember much from that night because he was very drunk but did remember that Pryor had a .38 revolver. Frails also admitted having said at his plea hearing and sentencing that he had walked to the victims' car with Pryor, that Pryor pulled his gun, that ...