Many folks don’t seem to realize it, but a conviction for certain crimes can destroy the opportunities for a person to remedy their behavior since they are dooming themselves to years of incarceration, with no chance for probation or parole, through a conviction of any of a class of crimes. The statute that provides for this mandatory minimum sentencing is Section 17-10-6.1 of the Georgia Code, which states as follows:
(1) Murder or felony murder, as defined in Code Section 16-5-1;
(2) Armed robbery, as defined in Code Section 16-8-41;
(3) Kidnapping, as defined in Code Section 16-5-40;
(4) Rape, as defined in Code Section 16-6-1;
(5) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
(6) Aggravated sodomy, as defined in Code Section 16-6-2; or
(7) Aggravated sexual battery, as defined in Code Section 16-6-22.2.
(b) (1) Notwithstanding any other provisions of law to the contrary, any person convicted of the serious violent felony of kidnapping involving a victim who is 14 years of age or older or armed robbery shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.
(2) Notwithstanding any other provisions of law to the contrary, the sentence of any person convicted of the serious violent felony of:
(A) Kidnapping involving a victim who is less than 14 years of age;
(C) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
(D) Aggravated sodomy, as defined in Code Section 16-6-2; or
(E) Aggravated sexual battery, as defined in Code Section 16-6-22.2
shall, unless sentenced to life imprisonment, be a split sentence which shall include a mandatory minimum term of imprisonment of 25 years, followed by probation for life. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court or reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.
(3) No person convicted of a serious violent felony shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders. The State of Georgia shall have the right to appeal any sentence which is imposed by the superior court which does not conform to the provisions of this subsection in the same manner as is provided for other appeals by the state in accordance with Chapter 7 of Title 5, relating to appeals or certiorari by the state.
(c) (1) Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(2) For a first conviction of a serious violent felony in which the accused has been sentenced to death but the sentence of death has been commuted to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(3) For a first conviction of a serious violent felony in which the accused has been sentenced to imprisonment for life without parole, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(4) Except as otherwise provided in this subsection, any sentence imposed for the first conviction of any serious violent felony shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court; provided, however, during the final year of incarceration an offender so sentenced shall be eligible to be considered for participation in a department administered transitional center or work release program.
(d) For purposes of this Code section, a first conviction of any serious violent felony means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States, which offense if committed in this state would be a serious violent felony. Conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.
As the Code Section above states plainly, conviction for commission of a “serious violent felony” (including an act defined as “rape”, such as the use of a date-rape drug or any sexual act involving lack of consent, as well as child molestation that is Aggravated because of restraint of the victim or kidnapping, or the use of an offensive weapon) will result in a mandatory minimum sentence of 25 years of incarceration, followed by a lifetime of probation. This is the very minimum for a crime that qualifies for this treatment. It appears, from reading the statute and the cases discussing it, that there are few meaningful “second chances” for a person who is convicted of any of these crimes.
For discussion of this issue under an ineffective assistance of counsel argument (grounds for a habeas corpus petition against the sentence if it can be proven), below is the 2011 Georgia Court of Appeals cases of Wilson v. The State and Rockamore v. The State, 306 Ga.App. 827, 703 S.E.2d 400 (Ga. Ct. App. 2011):
Maurice G. Kenner, Decatur, for appellant (case No. A10A0863). J.M. Raffauf, Decatur, for appellant (case No. A10A0864).Paul L. Howard, Jr., Dist. Atty., John O. Williams, Asst. Dist. Atty., for appellee.SMITH, Presiding Judge.
Cedric Rockamore and Anthony Wilson were convicted of armed robbery, burglary, four counts of aggravated assault, and possession of a firearm in the commission of a felony. Their motions for new trial were denied, and they appeal, asserting various allegations of ineffective assistance of counsel. Rockamore also asserts the general grounds. Finding no error, we affirm.
1. Rockamore raises the general grounds, contending the State failed to present sufficient evidence to corroborate the testimony of the accomplice, Howell. We disagree.
A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.
(Citations, punctuation and footnotes omitted.) Barnett v. State, 244 Ga.App. 585, 587(2), 536 S.E.2d 263 (2000). Here, the victims testified that the robbery was committed by a total of three men. They entered the apartment, forced the occupants to strip, and asked them “where the dope and the money at.” While the robberywas in progress, another resident of the apartment arrived at the front door with a companion. The resident unlocked the door but was unable to open it because it was chained. One of the occupants of the apartment unchained and began to open the door, and one of the robbers reached around the door and fired through the gap with a pistol, killing the resident in the hallway. The resident’s companion was also wounded as he fled. A .40 caliber bullet was recovered from the resident’s body, while a 9 mm bullet was recovered from the arm of his companion.
Howell testified that he, Wilson, Rockamore, and co-defendant Henry Taylor planned the robbery because the residents of the apartment “behind Lenox train station” were believed to keep drugs and cash on hand. Wilson gave Howell a .40 caliber pistol which he passed on to Taylor to give to Rockamore, while Taylor gave Howell a 9 mm pistol. According to Howell, Taylor’s girlfriend picked up Howell and Rockamore in a green Toyota Camry. She then picked up three other men and took them all to the robbery location and waited in the parking lot until after the robbery.
Howell also testified that he, Rockamore, and the others entered the apartment. They ordered the occupants to strip and ransacked the rooms searching for “the money and the drugs.” During the robbery, two individuals arrived at the front door and knocked, and Rockamore went to the door with one of the occupants at gunpoint. Howell testified that Rockamore reached over the victim’s shoulder and shot one of the men at the door; the other man fled, and Howell shot at him “to try and stop him.” Howell and his cohorts then fled to the car and left the scene.
Taylor’s girlfriend testified that she owned a green Toyota Camry and had driven Howell and Rockamore to an apartment complex near the Lenox MARTA station. She did not recall the name of the complex, but testified that she had driven Howell and Rockamore to only two complexes in Buckhead and that one of them was near the MARTA station.
Forensic testing found Howell’s fingerprint on the 9mm pistol recovered after co-defendant Taylor was arrested on another charge. No fingerprints were found on the .40 caliber pistol recovered at the same time. Bullets recovered from the victim’s body were identified as having been fired from the .40 caliber pistol, while the bullet which wounded his companion was identified as having been fired from the 9mm pistol.
“The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” (Citation, punctuation and footnote omitted.) Meridy v. State, 265 Ga.App. 440, 442(2), 594 S.E.2d 378 (2004). “If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted; emphasis supplied.) Drew v. State, 256 Ga.App. 391, 393(1), 568 S.E.2d 506 (2002).
The victims’ testimony describing the perpetrators, their weapons, their conduct, and their locations during the robbery is consistent with the testimony of the accomplice and provides some corroboration.2 Metoyer v. State, 282 Ga.App. 810, 812(1)(a), 640 S.E.2d 345 (2006) ( “victims’ description of the perpetrators and their vehicle, as well as their testimony regarding the timing and method of the robbery” corroborative as consistent with accomplice’s testimony). The testimony from a witness that she drove Rockamore and the accomplice to an apartment complex near the Lenox MARTA station provides some additional corroboration. Baines v. State, 276 Ga. 117, 119(1), 575 S.E.2d 495 (2003) (corroboration in part by [306 Ga.App. 830] evidence that appellant was driven to the vicinity of the victim’s home on the day of the crime).
2. We next consider Rockamore’s allegations of ineffective assistance of counsel. He complains that his trial counsel failed to object to a prosecutor’s statements bolstering the credibility of his accomplice and also failed to object to a prosecutor’s statement that the judge would decide the credibility of the accomplice’s testimony.
(a) Rockamore points to a number of statements made by the prosecutor during closing argument, contending that the prosecutor “repeatedly vouched for the credibility of the accomplice.” He asserts that his trial counsel was ineffective in failing to object. But
[a]s a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.
(Citations and punctuation omitted.) Brown v. State, 293 Ga.App. 633, 637–638(1)(d)(ii), 667 S.E.2d 899 (2008). The prosecutor was allowed to argue the veracity of witnesses from the evidence, so long as she did not “state to the jury his or her personal belief about the veracity of a witness.” (Citation, punctuation and footnote omitted.) Navarro v. State, 279 Ga.App. 311, 314(2)(b), 630 S.E.2d 893 (2006).3
Only one of the statements cited by Rockamore appears to have indicated a personal belief on the part of the prosecutor. While responding to Rockamore’s earlier argument that the State had failed to present a witness, she stated:
They want to know why Andrew Fike, the white male, wasn’t in the courtroom. Well, I’ll tell you why. My job as a prosecutor is to prosecute the case. And I do not waste your time unless it can be corroborated. Fike could not be [306 Ga.App. 831] corroborated. While I believe Howell and I believe he’s testifying truthfully because he—
Rockamore’s counsel interrupted the prosecutor, “Your honor, objection to what she believes is irrelevant and—” and the prosecutor immediately stated, “Strike it. Strike it, I’ll back up.” Rockamore’s counsel therefore did object, and his objection was successful.
While Rockamore asserts that his trial counsel should have further moved for a mistrial, such decisions generally fall within the ambit of strategy and tactics.Matiatos v. State, 301 Ga.App. 573, 576(2)(b), 688 S.E.2d 385 (2009) (decision not to renew motion for mistrial strategic). Here, Rockamore failed to call his trial counselas a witness at the motion for new trial hearing.
Without such testimony, in the absence of other evidence that trial counsel’s performance was deficient, the trial court is to presume that trial counsel’s actions are part of trial strategy. In the absence of trial counsel’s testimony, it is extremely difficult to overcome this presumption.
(Citations and punctuation omitted.) Temple v. State, 253 Ga.App. 606, 609(2)(a), 561 S.E.2d 132 (2002). Without further evidence, “any decision not to object is presumed to be a strategic one which will not support a claim of ineffective assistance of counsel.” (Citation and footnote omitted.) Futch v. State, 286 Ga. 378, 383(2),687 S.E.2d 805 (2010).
(b) Similarly, Rockamore’s contention that his trial counsel was ineffective in failing to object to a question directed to Howell must fail. Howell acknowledged on direct examination that he had entered into a negotiated plea of guilty that required him to testify truthfully in this case. On cross-examination, Rockamore’s counselsuggested, and Howell agreed, that “the person that’s going to decide whether you testified truthfully is counsel sitting at the prosecutor table, right?” He attacked Howell’s credibility by pointing out numerous inconsistencies between his statement to police and his testimony at trial. He further suggested that Howell had a strong motive to testify in accordance with the desires of the prosecution. Finally, he again suggested, and Howell again agreed, that “if you don’t convince this lady that you’re telling the truth, you’re still on the hook for life plus 70 years, aren’t you?”
On redirect examination, the prosecutor asked Howell about the terms of his plea, including the rights of which he was informed and which he waived, and the requirement that he testify truthfully. She asked, and he agreed, that his sentence was for the judge to determine and that the judge instructed him that he must testify truthfully. She concluded: “So ultimately, it’s the judge who’s going to decide whether or not you testify truthfully, right?”
Rockamore contends that this suggested to the jury that the judge, not the jury, would judge witness credibility in general, rather than solely on the issue of Howell’s probation, and that his trial counsel was ineffective in failing to object. But Rockamore’s counsel himself opened this line of questioning on cross-examination by twice asserting that the prosecutor would determine whether Howell had testified truthfully, and in the absence of his testimony we must presume that to be a strategic decision. Having made that decision, trial counsel could not object because “[a] party cannot claim error where he himself committed or invited the error.” Westmoreland v. State, 192 Ga.App. 173, 176–177(2)(b), 384 S.E.2d 249 (1989). And “(f)ailure to raise a meritless objection cannot constitute ineffective assistance of counsel. [Cits.]”Jones v. State, 294 Ga.App. 854, 856(3), 670 S.E.2d 506 (2008). Moreover, given trial counsel’s line of questioning on this topic, it is unlikely that this exchange misinformed the jury as to their duty to judge witnesses’ credibility in the trial of the case, particularly since the trial court instructed the jury that it must determine the credibility or believability of the witnesses and the factors they might consider in making that determination.
Finally, Rockamore’s trial counsel succeeded in obtaining a jury verdict of not guilty on two counts of murder. This “strongly supports the conclusion that theassistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citation and punctuation omitted.) Jackson v. State, 281 Ga.App. 506, 511(3), 636 S.E.2d 694 (2006). Rockamore has not rebutted the presumption that counsel’s actions were strategic, and he has not shown that counsel’s failure to object, move for a mistrial or request curative instructions had any negative effect on the outcome of the trial, in light of his acquittal on two counts of murder.Parks v. State, 281 Ga.App. 679, 683(6), 637 S.E.2d 46 (2006) (appellant failed to call counsel, so actions presumed strategic; appellant charged with murder but convicted of voluntary manslaughter, so he could not show negative effect on outcome). “He has thus failed to meet his burden as to either prong of the Strickland test, and the trial court’s denial of his motion for new trial must be affirmed.” Id.
3. Wilson raises three allegations of ineffective assistance of counsel: that trial counsel was ineffective in failing to seek a Jackson–Denno hearing; that trial counselwas ineffective in failing [306 Ga.App. 833] to object to testimony regarding his purchase of marijuana from one of the victims; and that trial counsel was ineffective in failing to object to testimony from a police detective regarding the same purchase of marijuana.
The same general considerations with respect to Rockamore’s claims apply to Wilson’s allegations of ineffectiveness. Wilson, like Rockamore, was acquitted of two counts of murder, and Wilson, like Rockamore, did not call his trial counsel at the hearing on his motion for new trial.4
(a) With respect to the absence of a Jackson– Denno hearing, the evidence adduced at the hearing on Wilson’s motion for new trial shows that Wilson was not a suspect in these crimes at the time of his arrest, that he was informed of his Miranda rights, that he did not ask for an attorney, and that the statement was made without threat of force or promise of reward. See Mitchell v. State, 250 Ga.App. 292, 296(2)(a), 551 S.E.2d 404 (2001). The trial court explicitly found that Wilson was properly informed of his rights and waived those rights and, had a Jackson– Denno hearing been held, the statement would have been admitted. Wilson “has not demonstrated that trial counsel was deficient for failing to seek suppression of his custodial statement because he has failed to provide a meritorious basis to contest its admission.” (Citation, punctuation and footnote omitted.) Bunkley v. State, 278 Ga.App. 450, 454(1)(b), 629 S.E.2d 112 (2006).
(b) Wilson complains that his trial counsel was ineffective in failing to object to testimony from one of the victims and a police officer regarding his prior purchase of marijuana from one of the victims. But drug use showed [appellant’s] motive to rob a home where he believed illegal drugs and money would be found. Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence that [appellant] used drugs is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it incidentally puts his character in issue.
(Citation omitted.) Brady v. State, 270 Ga. 574, 578–579(5)(a), 513 S.E.2d 199 (1999). The accomplice, Howell, testified that the motive [306 Ga.App. 834] for therobbery was that the victims kept drugs and cash in the apartment. Howell also testified without objection that Wilson planned the robbery and knew that drugs and money were kept in the house “because he had been there before. He had dealt with [the victim] before on previous occasions.” “Evidence is harmless where admissible evidence of the same fact is before the jury.” (Citations and punctuation omitted.) Kennedy v. State, 207 Ga.App. 798, 799(2)(c), 429 S.E.2d 167 (1993). And “(f)ailure to raise a meritless objection cannot constitute ineffective assistance of counsel. [Cits.]” Jones, supra, 294 Ga.App. at 856(3), 670 S.E.2d 506.
1. The jury acquitted Rockamore and Wilson of murder and felony murder. One count of aggravated assault was nol prossed as to both appellants, two additional counts against Wilson were nol prossed, and a third was dead-docketed. On motion for new trial, the trial court granted a judgment of acquittal to Rockamore on a second count of felony murder.
2. The jury was instructed on the corroboration of accomplice testimony.
3. In support of his argument, Rockamore purports to quote our 1998 decision in Cheney v. State, 233 Ga.App. 66(1)(a), 503 S.E.2d 327 (1998), that “it is unquestionable that trial counsel’s failure to object to the argument and seek curative instructions was deficient performance.” That phrase, however, appears nowhere in Cheney and seems to be a direct quotation from then-Presiding Justice Hunstein’s dissent in Patterson v. State, 285 Ga. 597, 603, 679 S.E.2d 716 (2009). In any event, neither Cheney nor Patterson involved alleged bolstering in closing argument. Both dealt with the well-established principle that a prosecutor may not comment on a defendant’s election to invoke his right to remain silent, and Cheney did not involve an ineffective assistance of counsel claim.
4. In Wilson’s case, it appears that his trial counsel is deceased. But this does not change the rule that counsel’s decisions regarding objections and motions are presumed strategic in the absence of other evidence. See Jackson v. State, 230 Ga.App. 292, 293–294(1), 496 S.E.2d 315 (1998) (trial counsel deceased). No explanation was given for Rockamore’s counsel’s absence from the hearing on Rockamore’s motion for new trial.
As the opinion shows, the outlook for a person convicted of a serious violent felony in Georgia who accuses their lawyer of an impropriety that negatively influenced their conviction is in for an uphill battle.