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Luckie v. Berry

Supreme Court of Georgia

April 29, 2019

LUCKIE
v.
BERRY.

          BOGGS, JUSTICE.

         In this habeas case, Patrick Luckie challenges his 2005 convictions for unlawfully possessing heroin with intent to distribute and for abandoning a controlled substance in a public place. The judge at Luckie's criminal trial denied his motion to preclude the State from asking defense witness Gerald Hurst about Hurst's pending charge of unlawfully possessing heroin with intent to distribute.[1] Luckie had new counsel on appeal, who argued that the trial court abused its discretion in allowing the cross- examination, because Hurst's heroin charge did not show any relationship between Hurst and Luckie that might provide a motive for Hurst to shade his testimony in Luckie's favor. The Court of Appeals affirmed, holding that Luckie failed to preserve this argument for appellate review by not objecting on this ground at trial. See Luckie v. State, 310 Ga.App. 859 (714 S.E.2d 358) (2011). Luckie later filed a habeas petition, alleging among other things that his appellate counsel was constitutionally ineffective in failing to claim on appeal that his trial counsel were constitutionally ineffective in not objecting on this ground at trial.

         The record of Luckie's trial shows that Hurst's heroin charge stemmed from his arrest with Luckie less than a month before trial. This fact was discussed at Luckie's trial, albeit only outside the jury's presence. Thus, if Luckie's trial counsel had objected that Hurst's heroin charge, standing alone, was not probative of any relationship between Hurst and Luckie, the State likely would have responded by seeking leave to present evidence that Hurst and Luckie were together in the incident that resulted in Hurst's heroin charge, which would have been far more damaging to Luckie's defense. Moreover, the trial court likely would have given the State leave to present such evidence. Luckie has not shown that his trial counsel's decision not to take that risk was objectively unreasonable, and he has not shown that, but for his trial counsel's decision not to object on this ground, there is a reasonable probability that the outcome of the trial would have been more favorable. As explained below, it follows that Luckie failed to show the prejudice necessary to prevail on this claim of ineffective assistance of appellate counsel. Accordingly, we affirm the habeas court's judgment denying relief.[2]

         1. On June 1, 2004, Luckie was arrested for suspected drug possession. He was later charged by accusation with unlawfully possessing heroin with intent to distribute and abandoning a controlled substance in a public place. See OCGA §§ 16-13-3, 16-13- 30 (b). At a trial on April 5 and 6, 2005, a Fulton County jury found him guilty of both charges.

         The record of Luckie's trial shows the following. Shortly after 10:00 p.m. on the night of June 1, 2004, three Atlanta Police Department ("APD") officers were on patrol in the 500 block of James P. Brawley Drive, a residential area known for drug trafficking. The officer who was driving spotted Luckie walking alone across a vacant lot on the southeast corner of the intersection of James P. Brawley Drive and North Avenue and shined the patrol car's spotlight on him. Luckie, who was five to ten yards away, stopped walking, turned the front of his body toward the patrol car, reached behind his back, and surreptitiously threw a clear plastic sandwich bag on the ground. The officers immediately exited the patrol car, detained Luckie, and retrieved the plastic sandwich bag, which was in plain view. The officers examined the sandwich bag, which held 13 smaller plastic baggies containing a white, powdery substance, and then arrested Luckie. Forensic testing showed that the substance in the baggies was heroin.

         At trial, two of the three arresting officers testified, as did the forensic chemist who tested the substance in the baggies. Both testifying officers referred during their testimony to a contemporaneous police report to refresh their recollections about certain details, although the report itself was not admitted into evidence. The State also introduced the plastic sandwich bag with the 13 smaller plastic baggies inside that Luckie had thrown on the ground. In addition, the State presented evidence of a similar transaction on April 23, 2004, less than six weeks before the arrest that led to the charges on trial.[3] A different APD officer testified that he arrested Luckie on the same block after watching Luckie and another man attempt to sell drugs to the driver of a vehicle stopped in the middle of the street. The officer said that he retrieved a plastic bag holding 19 smaller plastic baggies containing heroin from a garbage can where Luckie threw the bag after the man working with Luckie spotted the officer. The forensic chemist who confirmed that the substance in the baggies was heroin also testified, and the plastic bag containing the 19 smaller plastic baggies was admitted into evidence. The State then rested its case.

         In earlier discussions held outside the jury's presence, the State said that if Luckie called Hurst as a witness, the State planned to ask Hurst about his pending heroin charge stemming from his arrest with Luckie less than a month before trial to show Hurst's motive in testifying for Luckie. The defense moved to preclude this line of cross-examination. During the course of these discussions, the following exchange occurred:

THE COURT: All right. Make your argument. The issue is may the State cross-examine a defense witness who has the same pending criminal charge as the defendant or who was a co-defendant with the defendant. It's not like an independent crime. It's a crime that has something to do with the defendant. Am I right?
STATE: Yes.
DEFENSE: Yes.
THE COURT: Okay. What's your argument?
DEFENSE: Your Honor, I would ask that the State not be allowed to ask my witness [i.e., Hurst] any question that brings my client's [i.e., Luckie's] character into evidence.

         When prompted by the court, the defense also objected on the ground that Hurst had not been convicted. The State responded that the testimony elicited by the cross-examination would show a relationship between Hurst and Luckie and, therefore, would be probative of a motive for Hurst to shade his testimony in Luckie's favor. Perhaps to address the defense's concern about bringing in Luckie's character, the State added, "We do not plan to ask about Mr. Luckie, just the fact that . . . the witness has an open pending case for possession of heroin here in Fulton County."

         The trial court ruled that if the defense called Hurst as a witness, the State could cross-examine Hurst about his pending heroin charge to show the relationship between Hurst and Luckie. The trial court based its ruling on former OCGA § 24-9-68, which, as noted above, said: "The state of a witness's feelings toward the parties and his relationship to them may always be proved for the consideration of the jury."[4]

         Luckie elected not to testify at trial. He did, however, call two defense witnesses, Hurst and Calvin Arnold. Hurst and Arnold both testified that on June 1, 2004, they spent the day working on several properties with Luckie after meeting up with him between 8:30 and 9:00 a.m. at a house across the street from the vacant lot where Luckie was later arrested. According to Hurst and Arnold, the three men arrived back at the intersection of James P. Brawley Drive and North Avenue at about 8:30 p.m.; there were scores of people in the area for a nearby wake; and Luckie had walked to a nearby apartment complex to get a quick haircut and was walking back across the lot on the southeast corner of the intersection between 8:30 and 9:00 p.m. when a patrol car pulled up. Hurst and Arnold said that when the patrol car pulled up, Luckie stopped walking, threw down the cigarette he was smoking, and put up his hands. Hurst and Arnold also said that they left five to 15 minutes later after the officers put Luckie on the ground and handcuffed him and that they did not see Luckie throw down anything other than the cigarette. Hurst added that, before he and Arnold left, he saw the officers walk back over to where they first grabbed Luckie and that the officers were "just walking around . . . looking for something" on the ground.

         On cross-examination, Hurst and Arnold acknowledged that they did not come forward until the day before the trial started and did so together, and they admitted that they were uncertain about the date of the events that they described.[5] In accordance with the trial court's earlier ruling, the State ended its ...


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