MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
jury trial, Ladarius Colbert was convicted of two counts of
armed robbery, two counts of aggravated assault, two counts
of possession of a firearm during the commission of a felony,
one count of aggravated battery, and one count of hijacking a
motor vehicle. Colbert appeals, claiming that the state
failed to reveal deals with two witnesses in exchange for
their testimony, that his trial counsel was ineffective, and
that the two aggravated assault counts should have merged
with one of the armed robbery counts. Colbert has not shown
that the state failed to reveal deals with witnesses or that
his trial counsel's performance was both deficient and
prejudicial. However, the state concedes that Colbert is
correct in asserting that one of the aggravated assault
counts should have merged with the armed robbery count.
Accordingly, we affirm in part, vacate the sentence in part,
and remand for resentencing.
in the light most favorable to the verdicts, see Jackson
v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d
560) (1979), the evidence shows that Colbert and an
accomplice entered a pizza restaurant with pistols; took
money from a cash register; punched an employee, breaking her
jaw; and fled with the money. Over a week later, Colbert and
accomplices used guns to force a man out of his car, beat him
and kicked him, took his cell phone, fired a gunshot at him,
and stole his car.
and two co-defendants were tried together before a jury,
which found the men guilty of multiple offenses arising out
of the incidents. Colbert moved for a new trial, which the
trial court denied. This appeal followed.
Alleged deals with witnesses.
contends that the state failed to reveal agreements that it
had with two witnesses who had pending criminal charges,
Jasmine Arrington and Demarco Jones, in exchange for their
testimony. We disagree.
Under Brady v. Maryland, [373 U.S. 83 (83 S.Ct.
1194, 10 L.Ed.2d 215) (1963)] and Giglio v. United
States, [405 U.S. 150 (92 S.Ct. 763, 31 L.Ed.2d 104)
(1972), ] the state is under a duty to reveal any
agreement, even an informal one, with a witness concerning
criminal charges pending against that witness, and a
failure to disclose such an agreement constitutes a
violation of the due process requirements of
Brady, supra. Giglio, supra. In order to
show that the state violated Brady [and
Giglio] by failing to reveal a deal with one of
its witnesses, a defendant must show that the state
possessed evidence of the deal; that the defendant did not
possess the evidence nor could he obtain it himself with
any reasonable diligence; that the state suppressed
evidence of the deal; and that, had the evidence of the
deal been disclosed to the defendant, there existed a
reasonable probability that the result at trial would have
been different. The burden is on the defendant to prove
each of these elements.
Alford v. State, 293 Ga.App. 512, 514-515 (2) (667
S.E.2d 680) (2008) (citations and punctuation omitted).
contends that there was at least an informal agreement
between Arrington and the state for the district attorney to
"let it be known that she cooperated." Indeed, the
trial transcript shows that this informal agreement was
revealed at the start of the trial when the district attorney
informed the court that he had offered "for
[Arrington's] cooperation to be taken into account"
regarding her pending charges, but had not made any specific
promises concerning a reduced sentence. Thus, Colbert knew of
the informal deal prior to the witness' testimony and
"[e]ven assuming, arguendo, that [he] was not aware of
all circumstances surrounding the deal before trial, he has
not shown that earlier disclosure would have benefitted
him[.]" Alford, supra at 515 (2).
further notes that the charges against Arrington were
ultimately transferred to juvenile court where she was given
probation. "However, there is no evidence that [any]
agreement [for such a disposition of her charges] was in
place prior to [Arrington] testifying." Serrate v.
State, 268 Ga.App. 276, 280 (3) (a) (601 S.E.2d 766)
(2004). On the contrary, Arrington, her attorney, and the
district attorney all testified that no such deal was in
place. "[M]ere speculation that [such a] deal existed
is insufficient to substantiate [Colbert's] claim that
the [s]tate withheld exculpatory evidence which prejudiced
his defense." Rhodes v. State, 299 Ga. 367, 369
(2) (788 S.E.2d 359) (2016) (citation omitted).
Jones, Colbert argues that the outcome of the trial would
have been different if the state had "disclosed that it
was going to reward Jones in some way after his
testimony[.]" However, Colbert has failed to point to
evidence of any deal, and Jones himself testified that no
deals had been made with him for his testimony. Once again,
mere speculation is insufficient to substantiate
Colbert's claim that a deal existed. Rhodes,
supra. See also Pih ...