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Lewis v. State

Court of Appeals of Georgia, First Division

May 14, 2019


          BARNES, P. J., MERCIER and BROWN, JJ.

          BROWN, JUDGE.

         Terry Allen Lewis appeals his convictions for possession of methamphetamine with intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He contends that (1) his trial counsel was ineffective for not calling certain witnesses and failing to file motions to suppress certain evidence; (2) there was insufficient evidence to support his convictions; and (3) the trial court erred in its charge to the jury. For the reasons that follow, we reverse Lewis' conviction for possession of a firearm during the commission of a crime, but affirm the remaining convictions.

         Viewed in the light most favorable to the jury's verdict, Duncan v. State, 346 Ga.App. 777 (815 S.E.2d 294) (2018), the evidence shows that on September 25, 2014, Corporal Larry Bracken responded to an address on Woodside Road in Richmond County after an anonymous caller reported traffic in and out of the vacant house on the property. Bracken testified that the subject neighborhood had experienced a rash of recent burglaries and that when police "get these calls, we take action." Bracken arrived at that address and noticed cars in the driveway and curtains in the windows. He knocked and the woman who answered told him he had the wrong address, that the vacant house was next door. As Bracken proceeded next door, he noticed that the main front door was open but a glass storm door was closed, and he could hear people moving around inside. Bracken testified that it appeared the carpet in the home was being replaced. When no one answered Bracken's knock, he announced "sheriff's office" and entered the home's living room. As Bracken, who was dressed in his police uniform, turned the corner from the living room to the den, he noticed Lewis, and the two men "scared each other." When Bracken again announced "sheriff's office," Lewis reached his right hand behind his back, pulled out a firearm, and pointed the barrel of the gun directly at Bracken. Bracken testified that he pulled out his firearm, and as he "was pulling the slack out of the trigger [to shoot Lewis], [Lewis] dropped his gun and threw his hands in the air." As Lewis threw the gun into a closet, Bracken commanded him to get his hands up and to back up away from the gun. As the two men backed into the kitchen of the home, Bracken noticed a second man sitting at the counter. Bracken placed both men in handcuffs. Bracken testified that at that point, Lewis was under arrest.

         After Lewis gave verbal consent, Bracken patted him down for weapons and discovered in his left rear pocket a candy tin containing methamphetamine.[1] Bracken also found in the home a scale and small baggies, as well as more than $400 cash on Lewis' person, including twenty-one twenty dollar bills, which Bracken testified is a sign of "selling." Bracken patted down the second man, but found nothing. Bracken arrested the second man for disorderly conduct and called for backup.

         Bracken, who was tendered as an expert in the field of narcotics investigation, testified that it is common for drug dealers to use vacant homes or rental cars to distribute drugs instead of their own homes or cars because they are afraid of "asset forfeiture." During cross-examination, Bracken confirmed that he weighed the methamphetamine on the scale he found in the home and that it weighed 3.9 grams. A GBI forensic chemist testified that the methamphetamine weighed 5.07 grams.

         Lewis testified at trial that William Walker hired him to work in the home, "install[ing] carpet [and] vinyl[, ] and fix[ing] the subfloor." Lewis stated that he had been on the job for three days working when Bracken appeared in the hallway. Lewis disputed Bracken's version of their encounter, specifically denying that he ever pulled a gun on Bracken or that the gun even belonged to him, explaining that the first time he saw the gun was when another officer arrived, searched the home, and "came back out with a pistol." He explained that he had been at the house for only fifteen minutes when Bracken arrived and that a carpet subcontractor he had hired was mad at him, had left the job, and "probably . . . ha[d] called" the police to complain of trespassers. Lewis denied ever being in the kitchen where the scale and baggies were found, explaining that the second man had been within "two feet" of the baggies, and he claimed that Bracken found the tin container in the laundry room amongst some tools left by the subcontractor, not Lewis' pocket. As for the money, Lewis first testified that his mother got it out of an ATM to give to him, but later testified that she got it from a bank teller.

         1. Lewis first argues that his trial counsel was ineffective in several ways. We disagree.

In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), ] which requires a defendant to show that his trial counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Additionally, there is a strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Lastly, unless clearly erroneous, we will uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo.

         (Citations and punctuation omitted.) Duncan, 346 Ga.App. at 783 (2).

         (a) Lewis contends that counsel was deficient in failing to call as a witness the second man arrested at the scene because he would have testified that the scale and baggies belonged to him and that he had a lawful purpose for possessing the items.[2]At trial, Lewis told the court that he "would have liked to call witnesses in [his] case[, ]" including Jimmy Lanier, the second man in the home. When asked at the motion for new trial hearing why he did not call Lanier as a witness at trial, trial counsel testified "I would not say that there was a [trial] strategy there." Lanier did not testify at the motion for new trial hearing.

         Because Lanier did not testify at the motion for new trial hearing, we have no idea whether he would have testified as Lewis hypothesizes. "The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant." (Footnote an punctuation omitted.) Herrington v. State, 285 Ga.App. 4, 6 (b) (645 S.E.2d 29) (2007). See also Hunt v. State, 278 Ga. 479, 480-481 (4) (604 S.E.2d 144) (2004) (failure of trial counsel to call investigator as a witness not prejudicial in absence of showing that evidence was crucial to defense). Accordingly, counsel was not ineffective in this regard.

         (b) Lewis next argues that his trial counsel was ineffective for failing to call his mother as a witness. Lewis' mother testified at the motion for new trial hearing that two days before her son was arrested, she withdrew $400 from her bank and gave it to him so that he could reclaim something from a pawn shop. Trial counsel explained that he did not call Lewis' mother as a witness because he "was not overly troubled about the money. I was more concerned about the fact that there was a scale in the kitchen and baggies that looked like somebody was selling the drug from the house."

         In evaluating this claim, we are guided by the principles stated above as well as the general rule that "trial counsel's decision as to which defense witnesses to call is a matter of trial strategy and tactics, and tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances." (Citation and punctuation omitted.) Muckle v. State, 302 Ga. 675, 680 (2) (808 S.E.2d 713) (2017). In this case, Lewis was in possession of at least 3.9 grams of methamphetamine - and in the presence of a scale and baggies - when he pointed a gun at a uniformed police officer investigating a report of traffic in and out of the vacant home in which Lewis alleges he had been working for three days. As the State points out, even if Lewis' mother explained to the jury why her son had a large sum of cash, she could not explain the drugs, gun, scale, and baggies. Trial counsel recognized this obstacle and chose not to draw attention to it. Under these circumstances, we conclude that trial counsel's decision not to call Lewis' mother was reasonable trial strategy and not deficient performance. See id.

         (c) Lewis next contends that trial counsel should have filed a motion to suppress the evidence seized from the home, including the firearm and drugs, because Bracken did not have a lawful reason to be in the allegedly vacant home after he realized that it was being worked on. At the motion for new trial hearing, trial counsel testified that he did not file a motion to suppress on this ground because Bracken knocked on the door of the home and received no response, "[h]e was still investigating the possibility that there was a burglary ...

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