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Harris v. State

Court of Appeals of Georgia, Second Division

March 8, 2018

HARRIS
v.
THE STATE.

          MILLER, P. J., ANDREWS and SELF, JJ.

          ANDREWS, JUDGE.

         Robert Harris was convicted of criminal attempt to commit armed robbery, entering an auto with intent to commit theft, and three counts of armed robbery. He appeals, asserting that he received ineffective assistance of counsel at trial. He also claims that the trial court erred in excusing a prospective juror from the jury panel and in failing to inquire whether he wished to poll the jury following the verdict. For reasons that follow, we affirm.

         Viewed in the light most favorable to the verdict, see Edwards v. State, 299 Ga. 20, 21 (1) (785 S.E.2d 869) (2016), the evidence shows that around 1:30 or 2:00 a.m. on June 13, 2014, two masked gunmen approached three young men in a park. With guns drawn, the masked men ordered the three to empty their pockets, take off their clothes, and lie on the ground. One victim moved too slowly, and a gunman struck him in the head. The robbers picked up the victims' possessions, threw their clothes into a nearby pond, and fled towards the parking lot where the victims had parked their car. The victims later discovered that money had been taken from the car console.

         The detective assigned to the case interviewed the victims, but had few leads as to the robbers' identities. A few days later, however, the detective began investigating another incident in which two masked men robbed the manager of a convenience store at gunpoint, taking the manager's wallet and approximately $2, 500 in cash belonging to the store. During the robbery, the gunmen ordered the manager to remove his clothing and hit him in the head with a gun. The two men fled when the store's alarm sounded.

         Harris eventually became a suspect in the crimes, and police obtained a search warrant for his residence. Inside, police discovered a gun, as well as a pair of shoes linked to the crimes. Harris subsequently admitted to police that he took part in both robberies.

         Based on the evidence presented, the jury found Harris guilty of criminal attempt to commit armed robbery, entering an auto with intent to commit theft, and three counts of armed robbery. He filed a motion for new trial, which the trial court denied, and this appeal followed.

         1. Harris first argues that he received ineffective assistance of counsel at trial because trial counsel failed to make an adequate opening statement or closing argument, did not cross-examine the robbery victims, and offered no mitigation evidence before sentencing. To prevail on these claims, Harris must show that trial counsel performed deficiently and that the deficiency "so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency." Bazin v. State, 299 Ga.App. 875, 876-877 (683 S.E.2d 917) (2009) (punctuation and footnote omitted). He cannot meet this burden here.

         (a) Opening Statement.

         Harris contends that counsel's opening statement was inadequate because he presented no theory or defense concept for the jury to consider and did not ask jurors to "keep an open mind." During his opening, however, trial counsel asserted that Harris was "not the one who did it" and that he only confessed because he was dehydrated during the lengthy interrogation and "just start[ed] agreeing with [the police]." Counsel further stated: "[W]e ask you just to hold off until the case is over before you make up your mind." Trial counsel thus presented two defense theories - identity and false confession - and asked jurors not to prejudge the case. Although the opening statement was short, Harris has not overcome the "strong presumption . . . that trial counsel's performance was reasonable and that counsel's decisions and choices at trial fell within the broad range of professional conduct as assessed from counsel's perspective at the time of trial and under the specific circumstances of the case." Jones v. State, 296 Ga. 561, 564 (2) (769 S.E.2d 307) (2015).

         (b) Closing Argument.

         Harris contends that trial counsel's closing argument was insufficient because counsel did not explain the basic principles of law, such as reasonable doubt and the presumption of innocence. But "the fact that another attorney might have made a different closing argument does not show ineffectiveness." Bazin, supra at 877 (2). Trial counsel presented Harris's defense theory during closing argument, and the trial court fully charged the jury on the legal principles governing the case. Under these circumstances, Harris has not demonstrated that counsel's closing argument was deficient or prejudiced his defense. See id.

         (c) Cross-examination.

         Trial counsel did not ask the four robbery victims any questions at trial. Harris now challenges this decision, asserting that counsel should have exploited inconsistencies in the victims' testimony. At the motion for new trial hearing, however, trial counsel explained that he did not cross-examine the men robbed in the park because their direct testimony failed to support the indictment's aggravated assault charges, which alleged that Harris had discharged a weapon near each victim, and he did not want to give them an opportunity to testify further. Ultimately, the trial court directed a verdict for Harris on those counts. The record further shows that none of the robbery victims identified ...


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