Heard v. State ( 2015 )

296 Ga. 681FINAL COPY
S14A1925. HEARD v. THE STATE.
HUNSTEIN, Justice.
Appellant Eric Tramaine Heard was convicted by a jury of murder and
related offenses in connection with a July 2009 burglary and attempted robbery
culminating in the shooting death of Shereecka Pitts in the presence of her two
young daughters and her sister. Appellant appeals the denial of his amended
motion for new trial, contending that the evidence was insufficient for a jury to
find him guilty; his trial counsel rendered ineffective assistance; and the trial
court erred with regard to certain witness testimony and by not giving a specific
jury instruction. Finding no error, we affirm.1
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On December 16, 2010, a Clayton County grand jury indicted Appellant for
the following: malice murder; felony murder (predicated on burglary); felony murder
(predicated on aggravated assault); burglary; 12 counts of aggravated assault; four
counts of criminal attempt to commit armed robbery; kidnapping; simple battery;
false imprisonment; eight counts of possession of a weapon during a crime; and
possession of a firearm by a convicted felon. Appellant was tried by a jury on
February 27-March 1, 2012. The jury found Appellant guilty of two counts of felony
murder, eight counts of aggravated assault, four counts of criminal attempt to commit
armed robbery, kidnapping, simple battery, false imprisonment, eight counts of
possession of a firearm during the commission of a crime, and possession of a firearm
by a convicted felon. On March 12, 2012, the court sentenced Appellant to life
imprisonment for felony murder, a consecutive life term for kidnapping, and
consecutive terms totaling 116 years for the counts of aggravated assault, simple
battery, false imprisonment, possession of a firearm during the commission of a
Viewed in the light most favorable to the jury’s verdict, the evidence
adduced at trial established as follows. On the morning of the crimes, Pitts, her
daughters, and her sister, Lachauda Pitts, were at Pitts’ house watching
television when they heard the doorbell ring; they saw no one at the door. After
going back to Pitts’ bedroom, they heard people coming in the house and saw
two men approaching them. The two women ran towards the garage in an effort
to escape. Behind her, Lachauda then heard one of the men say, “You move I’ll
blow your mother f****** brains out.” She turned to see one of the men
holding a .40 caliber firearm and the other holding a firearm she could not
identify. The women stopped and retreated towards the bedroom where the two
young girls were located. The gunmen followed.
The two men demanded money, and the women replied that they did not
have any. Pitts told the assailants to take anything in the house, and Lachauda
got on the ground. Lachauda watched as Appellant opened the closet door,
crime, and possession of a firearm by a convicted felon. The remaining counts
merged or were vacated by operation of law. Appellant filed a motion for new trial
on March 30, 2012, which was amended on February 20, 2013. After a hearing on
Appellant’s amended motion for new trial on March 21, 2013, the trial court denied
Appellant’s motion on January 7, 2014. Appellant filed a notice of appeal on
February 6, 2014. The appeal was docketed to the September 2014 term of this Court
and submitted for a decision on the briefs.
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pushed Pitts inside, and demanded that she find money. The other man pointed
a gun in Lachauda’s face and repeatedly said that he would shoot her, while she
begged for her life. Lachauda then observed Appellant shoot Pitts in the
abdomen and saw her fall to the ground. Lachauda watched as Appellant shot
Pitts again in the leg. Pitts’ daughters began jumping and crying hysterically
upon seeing their mother shot. Appellant then put his hand around Lachauda’s
throat and said, “I’ll just do you how I just did your mother f****** sister [sic]
where the money at?” Appellant pointed a gun in Lachauda’s face and told her
to get the two girls off of the bed before he shot them. Lachauda gathered the
girls off of the bed and tried to calm them. Appellant demanded cell phones
from Lachauda, but she could not locate them. Appellant and the other gunman
then ran out of the front door.
When police arrived on the scene, they found Pitts unresponsive, with
gunshot wounds to her right thigh and abdomen. She died of these wounds at
the hospital. The bullet recovered from her body matched another bullet that
investigators found on the bedroom carpet. Investigators also recovered a .40
caliber shell casing in the bedroom.
Lachauda was able to give a description of both gunmen to the lead
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detective at the scene. Approximately two hours later, Lachauda spoke further
with this detective at police headquarters and gave descriptions of the two
gunmen to a sketch artist. Based on tips received after the media published the
sketches, investigators identified Appellant as one of the assailants. Four days
later, the lead detective showed Lachauda a photographic lineup. Upon seeing
Appellant’s photograph in the lineup, Lachauda immediately began crying and
shaking, and she identified Appellant as the shooter and the gunman that had
demanded money, threatened her and the girls, grabbed her by the throat, and
pointed a gun in her face. She testified to this effect at trial and identified him
in open court.
After police arrested Appellant, Sterling Flint contacted police, claiming
to have information about the murder. Flint met with police, where he gave a
videotaped statement implicating Appellant as the shooter. At trial, Flint
changed his story, claiming that he did not know Appellant and that he had lied
in his statement to police. The videotaped statement was played for the jury.
In it, Flint told investigators that he knew that Appellant “did it” and that he had
heard Appellant say, in reference to the crimes, “B**** should have gave [sic]
up the money” and “nobody gonna [sic] find out what I did to the b****.”
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1. The evidence as described above was sufficient to enable a rational
trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of
the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979).
2. Appellant argues that the photographic lineup shown to Lachauda was
so impermissibly suggestive that it gave rise to a substantial likelihood of
irreparable misidentification. We disagree.
An unduly suggestive procedure is one which leads the
witness to the virtually inevitable identification of the defendant as
the perpetrator, and is equivalent to the authorities telling the
witness, “This is our suspect.” Where the identification procedure
is not unduly suggestive, it is not necessary to consider whether
there was a substantial likelihood of irreparable misidentification.
Williams v. State, 290 Ga. 533, 535-536 (2) (a) (722 SE2d 847) (2012)
(punctuation omitted).
Applying this standard, we conclude that the photographic lineup shown
to Lachauda was not unduly suggestive. Though Appellant asserts that the lead
detective improperly used a post-arrest photograph of Appellant in the
photographic array, we find no error. Each of the photographs in the lineup
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depicted a black male standing before a similar blue background. The fact that
a post-arrest photograph of Appellant was used in the lineup does not render it
impermissibly suggestive. See Sharp v. State, 286 Ga. 799 (4) (692 SE2d 325)
(2010) (photographic lineup consisting of booking photographs did not render
them impermissibly suggestive). Moreover, the record does not indicate any
police action that would have led Lachauda to single out Appellant in the lineup.
Lachauda had a physical reaction to Appellant’s photograph during the lineup,
was confident that he was the shooter, and was consistent in her identification
from the time of the lineup, four days after the crimes, through the time of trial.
3. Appellant argues that his trial counsel rendered constitutionally
ineffective assistance. To establish ineffective assistance of counsel, a
defendant must show that his trial counsel’s performance was professionally
deficient and that but for such deficient performance there is a reasonable
probability that the result of his trial would have been different. Strickland v.
Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley
v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove deficient
performance, one must show that his attorney “performed at trial in an
objectively unreasonable way considering all the circumstances and in the light
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of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745
SE2d 637) (2013). If the defendant fails to satisfy either the “deficient
performance” or the “prejudice” prong of the Strickland test, this Court is not
required to examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d
359) (2012).
(a) Appellant asserts that counsel were ineffective for failing to file a
motion to suppress Lachauda’s identification of Appellant in the photographic
lineup. Given our determination that the photographic lineup shown to
Lachauda was not unduly suggestive, any such motion by counsel would not
have been successful, and Appellant thus can show neither deficient
performance nor prejudice in this regard. See Durden v. State, 293 Ga. 89, 97
(6) (a) (744 SE2d 9) (2013) (“failure to make a meritless motion or objection
cannot constitute ineffective assistance of counsel”).
(b) Appellant contends that counsel failed to properly impeach Flint with
his prior convictions. Given Flint’s acknowledgment during his trial testimony
that he was at that time incarcerated on unrelated charges, Appellant cannot
show prejudice from counsel’s failure to probe more deeply into Flint’s criminal
history. Additionally, insofar as Appellant neglected to introduce evidence of
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any of Flint’s prior convictions at the new trial hearing, this claim must fail. See
Fuller v. State, 278 Ga. 812 (2) (d) (607 SE2d 581) (2005).
(c) Appellant asserts that counsel were ineffective for failing to impeach
Lachauda with her prior inconsistent statements. However, Appellant’s trial
counsel were not questioned at the new trial hearing about their failure to
impeach Lachauda, and we thus must presume that their decisions in this regard
were reasonably strategic and cannot give rise to an ineffectiveness claim. See
Bright v. State, 292 Ga. 273 (2) (a) (736 SE2d 380) (2013).
(d) Appellant contends that counsel failed to call a rebuttal witness to
contradict Flint’s testimony. To prevail on this claim, Appellant must make “an
affirmative showing [of] how counsel’s failure would have affected the outcome
of his case” by demonstrating that the rebuttal witness’ testimony would have
been relevant and favorable to him. Goodwin v. Cruz-Padillo, 265 Ga. 614,
615 (458 SE2d 623) (1995). Although the rebuttal witness testified at
Appellant’s hearing on his motion for new trial, he did not testify specifically
about what his trial testimony would have been. Having failed to make any
proffer of the rebuttal witness’ expected trial testimony, Appellant cannot
establish prejudice in this regard. Id.
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(e) Appellant asserts that counsel failed to investigate the owner of a cell
phone found at the crime scene. However, Appellant did not produce this cell
phone at the new trial hearing, nor did he make any proffer as to what further
investigation would have uncovered. He thus cannot establish ineffective
assistance of counsel on this ground. White v. State, 293 Ga. 825 (2) (c) (750
SE2d 165) (2013).
(f) Appellant also claims his counsel were ineffective for failing to
produce Appellant’s cell phone records. However, counsel testified at the new
trial hearing that they had obtained these records, reviewed them, and spoken to
Appellant about his incoming and outgoing calls. Counsel testified that they did
not have any reason to disbelieve what Appellant told them about the calls and
his whereabouts when he received the calls, and that, on this basis, they did not
follow up further in this regard. Applying the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional performance, we
do not find that counsel’s actions here were so patently unreasonable that no
competent attorney would have followed such a course. See Romer, 293 Ga. at
344. Additionally, Appellant has failed to establish how this evidence or other
information from his cell phone records would have been favorable to his
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defense. See White, 293 Ga. at 827-828.
(g) Appellant also contends that counsel were ineffective because (1) they
never questioned Appellant’s alibi witness about Appellant’s whereabouts on
the morning of the murder; (2) they failed to request limiting instructions when
the trial court allowed the State to impeach Flint by playing his videotaped
statement; and (3) they failed to request a jury charge on “assault” as it related
to aggravated assault alleged in the indictment. Appellant did not raise any of
these issues in his amended motion for new trial or at the hearing on his motion,
and the trial court did not rule on them. Accordingly, he has failed to preserve
these issues for review on appeal. Jones v. State, 294 Ga. 501 (2) (755 SE2d
131) (2014).
4. Appellant argues that the trial court erred with regard to Flint’s
testimony. First, he asserts that the court improperly allowed Flint to testify
about a discussion he had with Appellant. However, trial counsel did not object
to this testimony; he objected only to the playing of Flint’s videotaped
statement. “The failure to make a timely and specific objection is treated as a
waiver.” Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160) (1983).
Accordingly, Appellant has not preserved this issue for appeal. See id.10
Second, Appellant contends that the court erred by admitting the videotape
of Flint’s statement without proper authentication. A “videotape is
authenticated by showing it is a fair representation of the object, scene, or
person depicted,” and any witness familiar with the subject depicted can
authenticate a videotape. Walthall v. State, 281 Ga. App. 434, 441 (2) (b) (636
SE2d 126) (2006). At trial, Flint acknowledged that the State had a videotape
of his interview with Cobb County detectives, identified himself in the video,
and admitted that the date on the video was consistent with the date he was
interviewed. See id. At the new trial hearing, Appellant did not present any
evidence to show that the videotape was not a fair representation or had been
altered. The Court finds that Flint’s testimony sufficiently authenticated the
videotaped statement.
Third, Appellant asserts that the court erred by failing to give the jury a
limiting instruction regarding the use of the videotaped statement for
impeachment purposes only. Even assuming such an instruction would have
been proper, Appellant never requested a limiting instruction. Therefore,
Appellant can show no error. Herring v. State, 277 Ga. 317, 319 (3) (588 SE2d
711) (2003) (“Limiting instructions must be requested in order for the failure to
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instruct to be erroneous.”).
5. Appellant argues that the trial court erred by not giving the jury a
charge on “assault” as it related to the offense of aggravated assault. Because
Appellant failed to object to the court’s jury instructions at trial, we review this
enumeration only for “plain error.” See Scott v. State, 290 Ga. 883 (4) (725
SE2d 305) (2012). The record reflects that the court charged the jury on the
offenses of aggravated assault with intent to commit murder, aggravated assault
with intent to rob, and aggravated assault with a deadly weapon. The court
provided the statutory definition of simple assault when charging on aggravated
assault for these offenses. See OCGA § 16-5-20. Therefore, there was no error.
Johnson v. State, 289 Ga. 650 (5) (715 SE2d 99) (2011) (aggravated assault
charge was sufficient because it covered the fundamentals of simple assault).
Judgment affirmed. All the Justices concur.
Decided March 2, 2015.
Murder. Clayton Superior Court. Before Judge Benefield.
Stephenson Law Group, Pamela S. Stephenson, Whatley & Associates,
Lynn H. Whatley, for appellant.
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Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant
District Attorney, Samuel S. Olens, Attorney Geneal, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Andrew G. Sims, Assistant Attorney General, for appellee.
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