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Priester v. State

Court of Appeals of Georgia, Fifth Division

May 23, 2019

PRIESTER
v.
THE STATE.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          MCFADDEN, PRESIDING JUDGE.

         After a jury trial, Melody Louise Priester was convicted of and sentenced for committing the offenses of armed robbery (OCGA § 16-8-41) and hijacking a motor vehicle (OCGA § 16-5-44.1).[1] She argues that the trial court erred in denying her motion to continue her trial, but we find no abuse of discretion. She argues that the trial court erred because, in sustaining an objection by the state, he improperly expressed an opinion on the facts in violation of OCGA § 17-8-57; however, Priester did not make this objection at trial and she has not shown plain error. Finally, she argues that her trial counsel was ineffective in failing to object to bolstering testimony from a law enforcement officer, but she has not shown that this performance was deficient. So we affirm.

         1. Facts.

         The evidence introduced at trial, viewed in the light most favorable to the verdicts, see Jones v. State, ___ Ga.___, ___ (___ S.E.2d ___) (Case No. S19A0392, decided Apr. 15, 2019), shows that, a few days after meeting and exchanging telephone numbers with the victim, Priester called the victim early in the morning and asked him to meet her. They met at a gas station and drove in separate cars to an apartment complex. There, Priester got into the victim's parked car, leaving the passenger door open. As she and the victim talked, Priester repeatedly looked in the direction of a building in the complex.

         A few minutes later, a man wearing a black hooded sweatshirt appeared from around the corner of the building and walked past the victim's car, then pivoted and began to run toward the victim's side of the car. The man held a pistol and made a comment suggesting that he was going to rob the victim, and the victim fled, leaving his cellular phone in his car. Priester did not run or scream; instead, she got back into her car and drove away, and the man in the sweatshirt got into the victim's car and closely followed Priester out of the apartment complex.

         The victim ran to a friend's house nearby and called 911. He gave the dispatcher identifying information about both his and Priester's cars. Soon afterward, a law enforcement officer stopped Priester. A male passenger in Priester's car jumped out of the car and fled. Several items were found in Priester's car, including a black hooded sweatshirt, a gun, the victim's cellular phone, an insurance card for the car stolen from the victim, and an identification card belonging to the victim. The victim's car was recovered the next day.

         In a custodial interview, Priester denied knowing the victim, but at trial she admitted that this was a lie. Instead, she testified at trial that the victim had hassled her while she was out with a male friend, who had confronted the victim. She stated that she left the scene when that happened, but she later picked up her friend; the friend then fled when she was stopped by law enforcement, leaving the various items in her car.

         2. Continuance.

         Priester argues that the trial court erred by denying her a continuance, which she sought on the ground that her counsel needed more time to prepare for trial. This matter is within the court's "sound legal discretion," OCGA § 17-8-22, and we will not reverse the trial court's ruling "unless it is clearly shown that the trial court abused [his] discretion." Massalene v. State, 224 Ga.App. 321, 322 (1) (480 S.E.2d 616) (1997) (citation and punctuation omitted).

         Priester has not made the necessary showing. She cites to cases such as Hughes v. State, 168 Ga.App. 413, 414-415 (2) (309 S.E.2d 409) (1983), in which trial courts denied continuances even though trial counsel had only recently been appointed. But the same trial counsel had represented Priester for more than a year before she moved for a continuance. The reason this counsel was arguably unprepared for trial was because Priester had stopped working with him while she pursued the possibility of retaining a different lawyer. The record indicates that, for approximately two months leading up to trial, Priester did not respond to her trial counsel's efforts to communicate with her. The trial court was authorized to consider this conduct of Priester in deciding not to grant her a continuance. See Massalene, 224 Ga.App. at 322 (1) ("The conduct of the party is a relevant and proper consideration of the judge in the exercise of [his] discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic.") (citation and punctuation omitted). See also Lewis v. State, 330 Ga.App. 650, 651 (768 S.E.2d 821) (2015); Hibbard v. State, 208 Ga.App. 457 (430 S.E.2d 824) (1993).

         3. Ruling sustaining objection.

         Priester enumerates as error the trial court's ruling sustaining an objection made by the state during her counsel's cross-examination of one of the state's witnesses. But she does not challenge the merits of that ruling; in her appellate briefs she neither argues nor cites to authority for the proposition that the trial court should have allowed the witness to answer the cross-examination question. So to the extent that Priester has enumerated as error the merits of the trial court's ruling, she has abandoned that enumeration. Ct. App. R. 25 (c) (2).

         What she does argue is that the words the trial court used in ruling on the state's objection improperly commented on the evidence in violation of OCGA § 17-8-57. We ...


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