David Robertson v. State ( 2020 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 24, 2020
In the Court of Appeals of Georgia
A20A0403. ROBERTSON v. THE STATE.
PHIPPS, Senior Appellate Judge.
On appeal for his conviction for terroristic threats and aggravated assault,
David Robertson argues that the trial court abused its discretion when it denied his
second post-trial motion for a continuance. We find no error and affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
Thus viewed in favor of the jury’s verdict, the record shows that on March 31,
2016, Robertson took a large number of Xanax pills, which he was prescribed for his
post-traumatic stress disorder (PTSD), in front of his wife.1 Due to Robertson’s
irrational behavior during this period, the wife had removed all firearms from the
couple’s Bainbridge house. On the evening of the following day, after the wife had
gone to bed, Robertson entered their bedroom and spilled gasoline on her. When the
wife jumped out of bed, Robertson, who was “staggering” and “unsure on his feet,”
poured more gasoline “all over the mattress.” When the wife went into the bathroom
to wash off, Robertson followed her and pulled her by the hair, screaming “Where are
the guns?” The wife pushed him into the bathtub, left the house, and drove to a
friend’s house in Alabama.
1
Robertson has failed to comply with Court of Appeals Rule 25 (c) in that he
has not provided citations to the specific volume and page number of the appellate
record for many of the statements in the factual portion of his brief. We also note that
after obtaining two extensions, Robertson failed to file a timely initial brief, after
which this Court ordered him to file or risk dismissal. His initial brief was finally
filed on December 5, 2019, almost three months after the appeal was docketed.
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The next day, the wife returned to the house with a group of police officers,
including a friend of hers. The front door was blocked from the inside. Robertson
eventually came out of the door with a crossbow pointed at his wife’s head. The
friend told Robertson to put the crossbow down, but he fired the bow as he turned to
confront the officer, with the released arrow traveling between the officer and the
wife. While Robertson was being handcuffed, he told one of the officers to give him
a gun and said, “I’ll kill you motherf***ers.” When the wife told Robertson, who was
now in custody, that he had tried to kill her the night before, Robertson replied,
“You[‘re] damn right I did.”
Robertson was charged with making a terroristic threat, three counts of
aggravated assault (for pouring the gasoline on his wife and for pointing the crossbow
at her and the officer), obstruction, and attempting to remove a weapon from a public
official. After pretrial proceedings, including an assessment of Robertson’s sanity, a
jury found him guilty of the terroristic threat and all three aggravated assault charges.
Trial counsel timely filed a motion for new trial raising the general grounds.
Appellate counsel Betsey L. Tate was appointed on June 21, 2018, and filed a notice
of appearance on July 30, 2018.
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On February 11, 2019, the trial court entered an order setting the hearing on
Robertson’s motion for new trial for March 5, 2019. Although she had been counsel
of record for more than six months, appellate counsel moved for a continuance due
to her caseload of 37 active cases. On February 27, the trial court denied the motion
and again noted that the case would be called on March 5. Immediately before that
hearing, appellate counsel filed a motion for reconsideration. At the March 5 hearing,
and after the trial court noted its responsibility to “move forward,”2 appellate counsel
said that she was not prepared, that she had not read the transcript, and that she
“[didn’t] know anything about the case.” The trial court then, after consultation with
appellate counsel, continued the hearing until July 9, 2019. The trial court also
arranged for appellate counsel to speak to Robertson.
On June 24, 2019, however, appellate counsel filed a motion for a second
continuance, again on the ground that she was not adequately prepared – specifically,
that “she had not had sufficient time” to identify or hire a private investigator or a
2
See, e.g., Owens v. State, 303 Ga. 254, 258 (811 SE2d 420) (2018) (“[I]t is
the duty of all those involved in the criminal justice system, including trial courts and
prosecutors as well as defense counsel and defendants, to ensure that the appropriate
post-conviction motions are filed, litigated, and decided without unnecessary delay.”)
(citation and punctuation omitted); Uniform Superior Court Rule 41.1 (requiring
motions for new trial to “be heard and decided as promptly as possible”).
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medical expert. In a written order filed on June 26, the trial court noted that the
transcripts of Robertson’s trial were “already filed at the time of her assignment,” that
appellate counsel had been “assigned this case over a year ago,” and that the court
had “already granted one continuance” based on her “being unprepared.” The trial
then denied the motion and noted that the hearing on the motion for new trial would
proceed as scheduled on July 9, 2019.
On that day, appellate counsel appeared and asked for “additional time” to
obtain an evaluation of her client for PTSD, given that she “ha[d] not had the
opportunity to arrange that.” Appellate counsel also asked for a sentence
modification. After the trial court denied the motion for new trial, appellate counsel
noted that she “ha[d] not filed an amended motion for new trial” and that the original
motion was “on the general grounds.” The trial court agreed with this statement, and
the hearing ended. The trial court later denied Robertson’s motion for new trial,
finding that the evidence was “more than sufficient” to sustain his conviction. The
trial court also filed orders denying Robertson’s oral motions for modification of
sentence and psychological evaluation, noting as to the latter that “a pretrial
psychological examination was had on [Robertson].” This appeal followed.
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1. Although Robertson has not asserted on appeal that the evidence was
insufficient, we have reviewed the record, and conclude that the evidence was indeed
sufficient to sustain his convictions for terroristic threat and aggravated assault. See
OCGA §§ 16-11-37 (a) (1), (2) (defining terroristic threat as threatening to “[c]ommit
any crime of violence” for purposes including “terrorizing another”); 16-5-21 (a) (2)
(defining aggravated assault as assault with a deadly weapon); Barker v. State, 263
Ga. 746, 747 (1) (438 SE2d 625) (1994) (affirming convictions for both aggravated
assault and felony murder when a defendant had doused the victims with gasoline and
then set them on fire, killing them).
2. On appeal, Robertson asserts a single error: that the trial court abused its
discretion when it denied his second motion for continuance of the hearing on his
motion for new trial. This contention has no merit.
“[T]he grant or denial of a motion for assistance of expert witnesses and other
investigative services lies within the sound discretion of the trial court[.]” (Citation
omitted.) Totten v. State, 276 Ga. 199, 200 (2) (577 SE2d 272) (2003). Likewise, we
review a trial court’s grant or denial of a continuance only for an abuse of discretion.
Robbins v. State, 290 Ga. App. 323, 326 (2) (659 SE2d 628) (2008).
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As a preliminary matter, we note that appellate counsel never amended
Robertson’s motion for new trial to include a claim that trial counsel was ineffective
for reasons including, for example, failing to investigate Robertson’s PTSD, as she
would have been required to do in order to preserve any such issue. Wilson v. State,
277 Ga. 195, 198 (2) (586 SE2d 669) (2003) (“where the issue of ineffectiveness [of
trial counsel] is not raised at all by appellate counsel, the claim of ineffectiveness is
waived”) (citation omitted). Even if the trial court had been presented with such a
claim, moreover, appellate counsel would have been required to offer “‘more than
mere speculation’” at the hearing on the motion for new trial that a potential witness
might have assisted Robertson’s case at trial. (Punctuation omitted.) Dickens v. State,
280 Ga. 320, 323 (2) (627 SE2d 587) (2006), quoting Goodwin v. Cruz-Padillo, 265
Ga. 614, 616 (458 SE2d 623) (1995).
The record shows that although appellate counsel had been assigned to the case
for more than a year, she had not undertaken any significant preparation in
Robertson’s case as of the March 5 hearing, when the first continuance was granted.
The trial court was also authorized to conclude that, particularly in light of appellate
counsel’s agreement to the July 9 hearing date, the circumstances described in
Robertson’s second motion, including a wished-for investigation of his PTSD, did not
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amount to any material change justifying a continuance. There was no abuse of
discretion here. See Totten, 276 Ga. at 201 (2) (affirming the denial of a defendant’s
post-trial motions for funds to hire an investigator); Robbins, 290 Ga. App. at 326-
327 (2) (affirming the denial of a defendant’s motion for continuance made on the
first day of trial when counsel had a week to procure the potential witnesses at issue).
Any issue as to appellate counsel’s own performance must await review by a habeas
court. State v. Smith, 276 Ga. 14, 15 (1) (573 SE2d 64) (2002) (“Habeas corpus is the
exclusive post-appeal procedure available to a criminal defendant who asserts the
denial of a constitutional right.”) (citation omitted), disapproved on other grounds,
Wilkes v. Terry, 290 Ga. 54, 55-56 (717 SE2d 644) (2011).
Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.
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