Smith v. State
Smith v. State
Dissenting Opinion
dissenting.
1. Even if one credits the majority’s position and finds that Mrs. Jackson’s movement to the bedroom was in order to get her purse in response to Smith’s command, such movement was incidental to the armed robbery and in necessary furtherance thereof. If Mrs. Jackson had retrieved her purse and given it to Smith, the armed robbery would have been complete. And evidence of Mrs. Jackson’s movement to get the purse and give it to Smith would have been “used up” in proving the completion of the armed robbery.
The majority considers the attempted armed robbery “complete” at the “substantial step” of ordering Mrs. Jackson to get her purse with the accompanying threat of the use of a weapon. But I submit that the attempted armed robbery was not “complete” until it was frustrated by Mr. Jackson. I believe the majority confuses what it takes for the State to prove an essential element of attempted armed robbery pursuant tó OCGA § 16-4-1 with the offense in toto. “An attempt to commit a crime involves three elements: the intent to commit the crime, performance of a substantial step towards its commission, and failure to complete the crime”
In this case, Mrs. Jackson’s movement was not in any sense separate from the armed robbery attempted by Smith, but was integrally linked therewith as the method by which Smith was to receive the purse and thus complete the taking.
2. As a matter of law, a directed verdict should have been entered on the kidnapping charge pursuant to Smith’s motion therefor.
The record shows that defendant Smith was, without resistance and with his hands over his face, backing away from Mr. Jackson’s raised cane and toward the front door at the time Mrs. Jackson made the decision to leave the living room in order to go into the bedroom and use the telephone. Before Smith began cowering and retreating, he had ordered Mrs. Jackson to get her purse, and Mrs. Jackson testified that her purse was in the bedroom. But Smith did not know
While any movement will suffice to prove asportation, the offense of kidnapping, i.e., “abducting or stealing away any person without lawful authority and holding such person against her will,” does not encompass the instant scenario wherein the defendant is attempting to leave the scene at the point the victim makes the decision to move to a location unknown to the defendant and to dial 911, an earlier “threatening command” to get one’s purse notwithstanding.
Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982); McClure v. State, 179 Ga. App. 245, 246 (2) (345 SE2d 922) (1986).
Love v. State, 190 Ga. App. 264, 266 (378 SE2d 893) (1989) (Benham, J., concurring specially).
(Emphasis supplied.) Perkins v. State, 224 Ga. App. 63, 64 (1) (479 SE2d 471) (1996); Wittschen v. State, 259 Ga. 448 (1) (383 SE2d 885) (1989).
Jordan v. State, 242 Ga. App. 408, 409 (3) (530 SE2d 42) (2000).
OCGA § 16-1-6 (1).
Compare Woodson v. State, 273 Ga. 557, 558 (544 SE2d 431) (2001) (defendant’s order to “go in there” along with brandishing of a knife and defendant’s physical accompaniment of victim into room sufficient to show asportation based on threatening command). See also Woodson v. State, 242 Ga. App. 67, 68 (530 SE2d 2) (2000).
Opinion of the Court
A jury found Carl Keith Smith guilty of kidnapping, criminal attempt to commit robbery, burglary, possession of tools for the commission of a crime, and several traffic offenses including driving while license suspended, improper passing, reckless driving, speeding, and improper passing on the left. Due to his extensive criminal record, Smith garnered a recidivist sentence. Following the denial of his motion for new trial, Smith filed this appeal. Smith now claims that the trial court erred by failing to merge the four felony convictions, by admitting certain identification evidence, and by refusing to compel the State to turn over the 911 tape. He also alleges that he was deprived of effective assistance of counsel and that the State failed to prove the element of asportation for the offense of kidnapping. Finally, he contests the sufficiency of evidence as to his conviction for possessing tools for the commission of a crime. Having considered these issues and found them lacking in merit, we affirm.
When viewed in the light most favorable to the verdict, the evidence established that in mid-morning, a man came to the home of Jesse Hugh Jackson and his wife, Edna Jackson, to express interest in certain rental property. Although identifying himself as Tony Walker, he was, in fact, Carl Keith Smith. About two hours later, Smith returned to the Jacksons’ residence, interrupting their lunch. Mrs. Jackson recognized Smith as the “nice young man” with whom she had chatted earlier. Smith told her that he wanted to give her another telephone number. When she left to retrieve a note pad, Smith entered their home without permission. Once inside, Smith
After being attacked with the cane, Smith fled. Shortly thereafter, an off-duty sheriff’s deputy spotted a car matching the broadcast description of Smith and his vehicle. After driving erratically and committing multiple traffic violations while attempting to elude capture, Smith was eventually apprehended. Lieutenant Rodney Bennett noted a red, raised bump on Smith’s forehead. Detective Keith Whiteside described seeing “a welt or a knot on the front portion of his head.”
After being transported in separate police vehicles to the site of the traffic stop, Mr. Jackson and Mrs. Jackson each independently identified Smith as the perpetrator. These identifications occurred about 30 to 45 minutes from the time Smith left their home. In court, they also identified Smith as their attacker.
Detective David McNaughton inventoried the car that Smith was driving and found a dent puller, a flat blade screwdriver, and a lock cylinder that had been removed from a car. McNaughton testified that the dent puller is “used for pulling out locks on cars, to use to get in so they can do the ignition, steal cars.” He explained that by removing the lock cylinder, entry to the vehicle can be gained. He demonstrated the process to the jury by using the dent puller and the screwdriver. According to McNaughton, based on the tool marks on it, the lock cylinder found in the trunk had been removed in this way.
1. Smith contends that the trial court erred by failing to merge the counts for kidnapping, criminal attempt to commit robbery, burglary, and possession of tools for the commission of a crime. Smith claims that when the “actual evidence” test is applied, all the evidence is used up and these four counts merged.
2. Smith claims that the trial court erred by admitting the identification testimony because the identification procedure was impermissibly suggestive and resulted in a substantial likelihood of misidentification. He points out that when the Jacksons identified him at the showup, he was the sole person in handcuffs and was surrounded by uniformed officers.
Such on-the-scene showups have been found not to be impermissibly suggestive when they are necessary under the practicalities of the situation.
3. Smith contends that the trial court erred by refusing to compel the State to turn over the 911 tape to the defense. He asserts that the State violated the rules of discovery by failing to provide him with that tape which he claims would have been exculpatory within the meaning of Brady v. Maryland.
OCGA § 17-16-4 (a) (3) requires the State to timely allow “the defendant ... to inspect and copy . . . [audiotapes] . . . which are
4. Smith’s assertion that he received ineffective assistance of counsel at trial lacks merit. To establish an ineffectiveness claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency prejudiced him.
(a) Smith claims that his counsel failed to force the State to turn over discoverable material, the 911 tape, and witness statements. But, prior to trial, the court granted a defense motion to exclude the only statement not given to the defense during discovery. As to the 911 tape, at the hearing on the motion for new trial, the court expressed its displeasure at the State’s failure to provide the 911 tape during discovery to the defense. The trial court, however, determined that tape was not a material piece of evidence in light of testimony at trial about the substance of the call and the sequence of events in response to that call. Whether a transcription of the 911 call or the audiotape itself could have assisted the defense is now speculative at best. The defense was provided a copy of the dispatch, a report compiled from the information reported to the 911 operator, and Smith was able to thoroughly cross-examine the Jacksons and the responding officers to probe for any ambiguities or discrepancies. Accordingly, even had the issue been preserved, Smith has not established the requisite deficiency and prejudice needed for reversal.
(b) Smith contends that his trial counsel failed to object to testimony about the contents of the 911 call. But part of the defense strategy was to suggest that Smith had been misidentified as the perpetrator, by focusing on purported deviations or inconsistencies in the initial descriptions provided by the Jacksons in contrast to informa
(c) Smith urges that his defense was impeded by his counsel’s failure to call Daryl Williams as an alibi witness. At trial, two alibi witnesses testified, one of whom is Smith’s brother. Both had criminal records. His brother vouched for Smith having been with him in the morning, and the other witness testified about the early afternoon. At the motion hearing, appellate counsel complained that Williams, who had been transported from a correctional facility and had waited to testify, was never called. Counsel claimed that Williams was the only person who could have testified about Smith’s whereabouts for both the morning and the afternoon. However, no testimony from Smith’s trial counsel was offered, and no proffer of Williams’ testimony was made. Therefore, Smith has not overcome the presumption that the decision not to call Williams to testify was a reasonable exercise of professional judgment.
5. Smith contends that there was not sufficient evidence to prove the offense of kidnapping because the State failed to prove asportation, a required element of that crime.
A kidnapping conviction requires proof of an unlawful asportation of a person against his will.
6. Smith contends that the evidence was insufficient to prove the count for possession of tools for the commission of a crime. He points out that his girlfriend, Cecile Louise Wood, owned the Saturn in which the tools were found.
On the day of the crimes, Smith left Wood at her workplace at about 8:00 a.m. then used the car. Several hours later, when Smith was apprehended, he had sole possession of the vehicle. A dent puller, the flat blade screwdriver, and a cylinder were found in the trunk at that time. No evidence suggested that these tools belonged to Wood or that she used them in her employment as a research specialist for a major bank. It is undisputed that Smith had control over the vehicle and had access to the trunk. Thus, Smith had at least joint constructive possession of the tools.
Judgment affirmed.
See State v. Burgess, 263 Ga. 143, 144-145 (1) (429 SE2d 252) (1993).
(Citations and punctuation omitted.) Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).
Ricks v. State, 178 Ga. App. 98, 101 (4) (341 SE2d 895) (1986).
Gould v. State, 239 Ga. App. 312, 313 (2) (521 SE2d 365) (1999); see OCGA § 16-4-1.
See Ellis v. State, 211 Ga. App. 605, 608 (2) (440 SE2d 235) (1994) (forcible movement of victim from her den to her bedroom was sufficient to show asportation).
See OCGA § 16-7-20.
Bigsby v. State, 210 Ga. App. 696, 697 (1) (436 SE2d 817) (1993).
Arnold v. State, 155 Ga. App. 782, 783 (1) (272 SE2d 751) (1980).
Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988).
373 U. S. 83 (83 SC 1194,10 LE2d 215) (1963).
See Rooks v. State, 238 Ga. App. 177, 178 (1) (518 SE2d 179) (1999).
Harper v. State, 241 Ga. App. 865, 867 (3) (528 SE2d 317) (2000).
Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996).
See id.
Nelson v. State, 242 Ga. App. 63, 66 (8) (528 SE2d 844) (2000).
Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).
Gibson v. State, 233 Ga. App. 838, 841 (4) (505 SE2d 63) (1998).
Robinson v. State, 210 Ga. App. 175, 176 (1) (435 SE2d 466) (1993).
Woodson v. State, 273 Ga. 557, 558 (544 SE2d 431) (2001).
(Citations and punctuation omitted.) Gibson, supra, 233 Ga. App. at 841 (4) (a).
See Williams v. State, 236 Ga. App. 351, 354 (1) (c) (511 SE2d 910) (1999) (holding victims at gunpoint while driving around parking lot sufficient proof).
See Ellis, 211 Ga. App. at 608 (2).
Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991).
See id.
See Russell v. State, 243 Ga. App. 378, 381 (2) (532 SE2d 137) (2000).
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