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Beamon v. State

Court of Appeals of Georgia, Fifth Division

February 21, 2019


          McFADDEN, P. J., RICKMAN and MARKLE, JJ.

          Markle, Judge.

         Following a jury trial, Carl Ricardo Beamon was convicted of armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), and possession of a firearm during the commission of a felony (OCGA § 16-11-106).[1] Beamon appeals his convictions and the denial of his motion for new trial, as amended, contending that (i) his trial counsel rendered ineffective assistance, (ii) the trial court committed error in admitting certain evidence over objection, and (iii) the evidence was insufficient to support the evidence. Finding no error, we affirm.

         Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that on the early morning of December 11, 2013, Beamon and two co-defendants entered a grocery store where the clerk and the cash register were enclosed in glass behind a locked door. Beamon, who was not wearing a mask, kicked down the door to the enclosure and stole cash and lottery tickets while holding a gun to the clerk.

         The armed robbery was recorded on the store's surveillance cameras. The store manager pulled the footage from the cameras and gave the video to the police. The video was admitted into evidence at trial, over objection, and was played for the jury. Items of clothing Beamon was seen wearing in the surveillance video, as well as a firearm similar to the one used during the robbery, were later recovered during a search of his residence, and were also admitted into evidence at trial.

         During the State's case-in-chief, the store clerk was called as a witness. In the presence of the jury, the clerk was unable to take the oath because of difficulties understanding English. The trial court held a hearing outside the presence of the jury, and ultimately determined the clerk was incompetent to testify without an interpreter. As the State did not secure an interpreter, the jury heard no testimony from the victim.

         At the conclusion of the trial, the jury convicted Beamon on all counts. Beamon filed a motion for new trial, as amended, contending that he received ineffective assistance of counsel and that the evidence was insufficient to support his conviction. The trial court denied the motion. This appeal follows.[2]

         1. Beamon first contends his trial counsel was ineffective for failing to object to certain remarks made by the prosecutor in closing argument. We disagree.

         To prevail on a claim for ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient, and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-695 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).

To meet the first prong of the required test, the defendant must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct, and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, the defendant must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of [his] trial would have been different.

(Citations and punctuation omitted.) Peterson v. State, 282 Ga. 286, 290 (4) (647 S.E.2d 592) (2007). "If an appellant fails to meet his . . . burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong." (Citation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d 876) (2012). In reviewing the trial court's ruling on a claim of ineffective assistance of counsel, we give "deference to the lower court's factual findings, which are upheld unless clearly erroneous; the lower court's legal conclusions are reviewed de novo." (Citation omitted.) Boatright v. State, 308 Ga.App. 266, 267 (1) (707 S.E.2d 158) (2011). Bearing these principles in mind, we address Beamon's claims of ineffective assistance of counsel.

         (a) Beamon argues that his trial counsel was ineffective for failing to object to the State's closing arguments, during which the prosecutor referenced a photographic lineup that was not admitted into evidence.

         The State first referenced the photographic lineup in its opening statement; however, the lineup was not tendered into evidence since the clerk did not testify. During closing argument, the State argued:

[Defense counsel] went back to my opening and said that during my opening I showed you a picture and said there was a lineup shown to a witness, that witness is going to come in here and identify somebody. And I did. I showed you a picture of the lineup, a picture of this Defendant, signed by . . . [the clerk]. You did not see that in the trial. Now, I would love to argue it, but I have to tell you the rule is you cannot consider that in your deliberations. What you can consider is the argument they made that it doesn't exist and that it's not there. Now, ask yourself, we didn't hear it from [the clerk], but what did you see in the courtroom? [The clerk] is a foreign national. English is not his first language. I don't even know what his legal citizenship status is. That's probably one of the reasons he's afraid to talk and come to court. But he comes in here, tries to take the oath, doesn't understand it, and when you can't take the oath, you can't testify. When you can't testify, nothing you would say can be considered. So I wish we could have had that evidence for you. It's not as though the State hid something. We brought the man in here. He just, for some reason today, whether he was telling the truth that he couldn't speak or not, because of some cultural thing or worried about being ...

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