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Whatley v. State

Court of Appeals of Georgia, Second Division

September 14, 2017

WHATLEY
v.
THE STATE

          MILLER, P. J., DOYLE and REESE, JJ.

          REESE, JUDGE.

         A Fulton County jury found Fernandez Whatley guilty beyond a reasonable doubt of kidnapping, aggravated assault, two counts of robbery (as lesser included offenses on armed robbery charges), and two counts of false imprisonment.[1] He appeals from the denial of his motion for new trial, contending that the trial court violated his right to a public trial, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his convictions. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the record reveals the following facts. On November 27, 2010, Hannibal Heredia was doing yard work at his Atlanta home while his wife, Angela Fox, and his nine-year-old daughter, A. H., were inside. Two men drove up, approached Heredia, assaulted him, and forced him inside his home. The assailants, who were both carrying guns, tied up Heredia, his wife, and his daughter and stole Heredia's and Fox's jewelry and wedding rings. In addition, the assailants stole several flat screen televisions, Heredia's and Fox's cell phones, and their Audi vehicle. The Audi, televisions, and cell phones were later recovered by law enforcement officers after they tracked Heredia's phone to an address associated with the Appellant. A friend of the Appellant subsequently testified that he saw the Appellant and an unidentified man arrive at a nearby apartment complex in an Audi shortly after the crimes in this case had been committed.

         Detective Vincent Velasquez, who worked with the homicide division of the Atlanta Police Department, responded to a 911 call about the crimes at issue (hereinafter, the "home invasion"). The detective believed that the home invasion may have been related to a gang-related crime spree that he was investigating; those crimes included a homicide, a rape, armed robberies, and other felonies. After conducting further investigation, Detective Velasquez identified the Appellant and another man, Tamario Wise, as suspects in the home invasion. The detective arrested the Appellant and transported him to the police station, where the detective conducted a custodial interview. According to Detective Velasquez, the Appellant admitted that he went to the home of Heredia and Fox with the intention of committing a robbery and that he tied up Heredia with a scarf, backed Heredia's Audi out of the garage, loaded the televisions into the car, and left the scene in the Audi. Those facts were consistent with Heredia's statements to the detective about the home invasion, as well as Heredia's testimony at the joint trial of the Appellant, Wise, and Robert Veal, a third suspect in the gang-related crime spree.

         In a 90-count indictment charging the Appellant, Wise, Veal, and three other individuals with an assortment of violent felonies, the State jointly indicted the Appellant and Wise for participation in criminal street gang activity (based upon the armed robbery of Heredia); the kidnapping of Heredia; the aggravated assault of Heredia; the armed robbery of Heredia and Fox; the false imprisonment of Fox and A. H.; and cruelty to children in the first degree. The jury acquitted the Appellant on the gang-related activity and child cruelty charges, found him guilty on two counts of robbery as lesser included offenses to the armed robbery counts, and found him guilty on the remaining charges. The court denied the Appellant's motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [3] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[4]

         The standard of Jackson v. Virginia, supra, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged.[5] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the trial court violated his constitutional right to a public trial[6] by closing the courtroom to the defendants' family members and other observers during voir dire.[7] Although the attorney for the Appellant's co-defendant, Wise, unsuccessfully objected to the alleged closure and moved for a mistrial, the Appellant's attorney did not object, nor did she join Wise's objection or motion. Consequently, any error by the trial court related to the alleged closure is waived, [8] and the issue of closure may only be raised in the context of an ineffective assistance of counsel claim.[9]

         2. The Appellant claims that the State failed to present sufficient evidence to support his convictions on Counts 85 and 86 of the indictment. Count 85 charged the Appellant with committing an armed robbery[10] of "Angela Fox" by taking her wedding ring from her persona and immediate presence, while Count 86 charged him with the false imprisonment of "Angela Fox." The Appellant argues that the State failed to present evidence that a woman named "Angela Fox" was present during the home invasion or that he stole a wedding ring from her, because Heredia only referred to her as his "wife" and never stated her name during his testimony. This argument lacks merit.

         First, the Supreme Court of Georgia rejected the same argument in its opinion affirming the conviction of the Appellant's co-defendant, Wise.[11] The Appellant has offered no authority or argument that would support a different ruling by this Court.

         Second, Heredia testified that his "wife" was present during the home invasion, that one of the assailants tied her up, and that one of them removed his and his wife's jewelry, including their wedding rings. Although Heredia did not mention his wife's name during his testimony, and Fox, herself, did not testify at trial, Detective Velasquez testified that he had interviewed Heredia shortly after the home invasion was committed, that he had conducted further investigation of the home invasion, and that the victims were Heredia, his wife, Angela Fox, and their daughter, A. H.

         Thus, we conclude that the evidence, when viewed in favor of the jury's verdict, was sufficient for the jury to find the Appellant guilty beyond a reasonable doubt of the crimes at issue.[12]

         3. Citing several alleged oversights by his trial counsel before and during trial, the Appellant asserts that he received ineffective assistance of counsel.

In order 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 so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.[13] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.[14]

         "An appellate court evaluates counsel's performance from counsel's perspective at the time of trial. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel."[15] Further, the burden of demonstrating prejudice that resulted from counsel's deficient performance, "although not impossible to carry, is a heavy one."[16] Thus,

a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [Appellant] as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.[17]

         (a) The Appellant claims that he was prejudiced by his counsel's failure to file a motion to sever his trial from that of his co-defendants.

         As an initial matter, the Appellant's assertion is not supported by the record, which shows that his counsel filed a comprehensive motion to sever the Appellant's trial from that of his co-defendants as part of a consolidated motion packet in February 2011, almost 20 months before the October 2012 trial. However, there is no order by the trial court on this motion in the record. Therefore, for the sake of this appeal, we will address this issue as if counsel had not filed a motion to sever.[18]

[T]he decision not to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. A defendant must do more than raise the possibility that separate trials upon the charges against him would have provided him a better chance of acquittal. Such a defendant must make a clear showing of prejudice proximately causing a denial of due process.[19]

         In its order denying the Appellant's motion for new trial, the court made the following observations regarding severance in this case:

While there may have been some theoretical risk that [the Appellant] would be tainted by the charges and actions of his co-defendants, it was equally possible that he would appear less culpable in comparison[.] . . . In fact, based on the Court's observation of the demeanor of the co-defendants versus [the Appellant], the Court concludes that this is exactly what happened.

         We find that the record supports the court's conclusion that the joint trial likely benefitted the Appellant by making him appear less culpable than his co-defendants, Wise and Veal. The record shows that Wise and Veal were involved in a violent, gang-related crime spree in the days leading up to the instant crimes. As a result of Wise's participation in those crimes, as well as the home invasion, he was convicted of malice murder, rape, multiple counts of armed robbery and aggravated assault, kidnapping, and several other felonies.[20] Similarly, Veal (who did not participate in the home invasion) was convicted of malice murder, rape, aggravated sodomy, multiple counts of armed robbery and aggravated assault, kidnapping, and multiple other felonies.[21] In contrast, the jury acquitted the Appellant on the charge of participating in gang-related activities and on the child cruelty charge, and the jury convicted him of robbing Heredia and Fox instead of finding him guilty on the more serious armed robberies that were charged in the indictment.

         We find that the Appellant has failed to meet his burden of demonstrating that the failure to pursue a severance constituted deficient performance. We also find, based on the record, there is no reasonable probability that the outcome of his trial would have been different if there had been a severance. Thus, he cannot prevail on this ineffective assistance claim.[22]

         (b) The Appellant argues that he received ineffective assistance when his counsel failed to object to the closure of the courtroom to the public, including the defendants' family members.

         The trial transcript shows the following, undisputed facts. At 11:05 a.m. on October 1, 2012, the trial court brought 75 prospective jurors into the courtroom; administered the oath to them; gave them preliminary instructions; read the entire 90-count indictment to them; and questioned them en banc to ensure that they all met the minimum legal qualifications to serve as a juror in the case.[23] Then, after noting that it was "just past noon, " the court dismissed the prospective jurors for lunch.

         Moments later, a court bailiff appears to have admonished the three defendants and their attorneys on the record, as follows:

Just [to] be clear, I thought instructions were given that no family members would be allowed today because there is no room [in the courtroom]. Please don't take it to the family and tell them to ask me because the answer is still no. We don't have any room. It will not be allowed today. No room will be allowed for family members until the jury selection is over.

         The prosecutor responded that this announcement was the first time he had heard of the bailiff's actions in excluding people from the courtroom. He noted, however, that there was "absolutely no space for anyone to sit" in the courtroom, that each bench was completely filled with prospective jurors sitting "shoulder-to-shoulder, " that the jury box was filled, and that there were no empty chairs. The prosecutor also stated that the case involved gang-related crimes and several witnesses had been attacked in jail, so there were extreme security issues to be considered, as well as the possibility of creating a fire hazard by admitting more people into the courtroom.

         Although the Appellant's counsel did not object to the exclusion of the public from the courtroom, Wise's attorney objected and moved for a mistrial based on the violation of Wise's right to an open, public trial. The trial court denied the motion for mistrial after considering the following, undisputed facts: neither the trial court judge nor the prosecutor was aware that the bailiff was excluding people from the courtroom; the State had not filed a motion to close the courtroom; the judge had not ordered the courtroom to be closed or ordered the bailiff to exclude anyone; the bailiff was either acting on his own initiative or on the instructions of his superior officer, not the judge; the doors to the courtroom were not locked during the approximately one-hour period at issue; the courtroom had no available seating for additional individuals during that time; and no one was asked to leave once they were in the courtroom.[24]

         In addition, as soon as the judge found out about the situation, he ordered a recess and then reconvened the trial in a different, larger courtroom that accommodated the family members and other observers.[25] The judge explained the reasons for the room change to the prospective jurors when voir dire was recommenced. The judge also provided copies of the indictment to the three co-defendants' family members, as they had not been present when he read the indictment to the prospective jurors. The Appellant's counsel did not object to the actions taken by the judge to remedy the situation.[26]

         Although the Appellant argues that his counsel should have objected to the closure, he cannot show that there is a reasonable probability that the trial court would have sustained the objection. As shown above, Wise's counsel did, in fact, object to the closure and move for a mistrial, and the court overruled the objection and denied the motion. The Appellant has not articulated any reason to support a finding that the court would have sustained the same objection if it had been raised by his counsel.[27]

         Further, "where, as here, the issue of a courtroom closure is raised in the context of an ineffective assistance of counsel claim, prejudice will not be presumed."[28] As the trial court found, the Appellant failed to articulate any prejudicial impact from counsel's failure to object. The transcript shows that the actual process of selecting a jury had not started; the court had asked the statutory questions to determine if anyone was unqualified to serve, but the attorneys had not questioned the panels or individual potential jurors. Further, there is no evidence that the closure affected the jury selection process or tainted the ultimate jury chosen, nor is there any evidence of misconduct or a miscarriage of justice that occurred during that one-hour period that would have demonstrated reversible error.[29]

         Thus, the Appellant has failed to carry his burden of showing that, if trial counsel had objected to the closure of the courtroom during voir dire, there is a reasonable probability that the outcome of the trial would have been different.[30]

         (c) The Appellant contends that his counsel was ineffective for failing to object to the court's decision to allow the State to present the testimony of Detective Velasquez to rebut his (the ...


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