BLACKBURN, Senior Appellate Judge.
Following a jury trial, co-defendants Jose Cruz, Juan Rodriguez, and Gaspar Sylvester (collectively "defendants") were each convicted on one count of armed robbery.
1. We first address defendants' challenges to the sufficiency of the evidence supporting their convictions. "On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [appellants] no longer enjoy[] a presumption of innocence." (Punctuation omitted.) Dennis v. State.
Within a few minutes, the police arrived and, with Aulet's roommate interpreting for him, the police determined that Aulet had been robbed by the three defendants living in the apartment just a few doors down. Consequently, the police knocked on the door of the apartment where Aulet said the robbery had occurred, and a Hispanic male matching a description that Aulet had provided of one of the assailants, opened the door. The police detained the man and thereafter found two other Hispanic males in the apartment, who also matched the descriptions provided by Aulet, as well as the fourth male who had stopped the attack. After the apartment was cleared, Aulet identified Cruz, Rodriguez, and Sylvester as his attackers. In addition, while ensuring that all of the robbery suspects had been removed from the apartment, the police saw Aulet's necklaces hanging on a hook on a bedroom wall. The police also saw several knives in the kitchen and a couple of box-cutters on the floor in an open closet.
Cruz, Rodriguez, and Sylvester were all charged in the same indictment with one count of armed robbery. Because neither the victim (Aulet) nor the defendants spoke English, several Spanish interpreters assisted the defendants during trial and translated all of the English testimony into Spanish. At trial, Aulet testified that Cruz, Rodriguez, and Sylvester robbed him at knife-point, and Aulet's roommate testified to assisting Aulet in calling the police and to translating for him when the police initially arrived. In addition, several police officers testified regarding their investigation of the matter. After the State rested, the defendants moved for a directed verdict of acquittal, which the trial court denied. At the trial's conclusion, the jury found Cruz, Rodriguez, and Sylvester guilty of armed robbery. All three defendants filed motions for new trial, which the trial court denied after a hearing. These appeals followed.
Cruz, Rodriguez, and Sylvester contend that the evidence was insufficient to support their convictions of armed robbery. Specifically, they argue that there was no evidence that a knife or box-cutter was used contemporaneously with the taking of the victim's property. We disagree.
"A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon." OCGA § 16-8-41(a). "The element of `use' is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery." (Punctuation omitted.) Pritchett v. State.
Here, the victim (Aulet) testified that Sylvester had a knife during the attack and that all three defendants struck and kicked him while taking his necklaces and money. Although the defendants point to inconsistencies in the victim's testimony as to whether the knife was first brandished during or after the robbery, "conflicts and inconsistencies in the testimony of witnesses, including the State's witness, are a matter of credibility for the jury to decide. As long as there is some competent evidence, though contradicted, to support each fact necessary to make out the State's case, a jury's verdict will be upheld." (Punctuation omitted.) Lattimore v. State.
2. Cruz, Rodriguez, and Sylvester contend that the trial court erred in denying their motions for new trial, arguing that their right to due process of law was violated because they could not meaningfully participate in their defense at trial due to a language barrier. Specifically, they contend that their primary language is Chuj
Defendants "correctly point[] out that due process concerns are raised when a defendant cannot comprehend the testimony of the trial witnesses and thus cannot meaningfully participate in his defense." Neugent v. State.
Moreover, the trial court did not err, as Cruz separately argues, in denying defendants' motions for new trial based on its finding that defendants' claim that they could not understand the Spanish translation of the proceedings lacked credibility. "[I]t is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony." (Punctuation omitted.) Watkins v. State.
3. Sylvester separately contends that the trial court erred in failing to find that his trial counsel rendered ineffective assistance in several respects prior to and during the trial in this matter. We disagree.
To demonstrate ineffective assistance of counsel under Strickland v. Washington,
(a) Sylvester contends that his trial counsel performed deficiently by failing to hire an investigator and by failing to interview the victim, all of the police officers involved, and the fourth male at the scene, who the victim claims intervened on his behalf and who Sylvester now claims was his own brother. Evidence supported the trial court's rejection of this contention.
For the most part, Sylvester's contentions are directly belied by the record. At the motion for new trial hearing, Sylvester's trial counsel testified that he spoke to several of the investigating officers about the case and spoke to the victim's roommate, who initially contacted the police. Trial counsel further testified that he attempted to locate Sylvester's brother (the fourth male at the scene) but was told by the man's family members that he had left the country. Moreover, Sylvester's argument concerning these alleged failures "is foreclosed by his failure to make any proffer of what the allegedly necessary investigations would have uncovered. Absent such a proffer, [Sylvester] cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of his case." (Punctuation omitted.) Williams v. State.
(b) Sylvester contends that his trial counsel failed to adequately prepare him for trial. Specifically, he argues that counsel performed deficiently by not meeting with him enough prior to trial and by not recognizing that Sylvester could not understand Spanish when he did meet with him. Some evidence shows otherwise.
At the motion-for-new-trial hearing, Sylvester's trial counsel testified that he met with Sylvester at least four times prior to trial to discuss the case. In addition, trial counsel testified that he believed that he and the Spanish interpreters he used were able to effectively communicate with Sylvester and that Sylvester never gave him any indication that he was unable to understand Spanish. Although Sylvester testified that trial counsel only met with him once and that
Furthermore, "[Sylvester's] claim that counsel spent inadequate time conferring with him is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client. Moreover, [Sylvester] has failed to demonstrate how additional time with counsel would have changed the outcome of his case." (Citation and punctuation omitted.) Ruffin v. State.
(c) Sylvester contends that his trial counsel was ineffective for failing to file a motion to sever his trial from that of his codefendants. This contention is without merit.
"The decision whether to grant or deny a motion to sever is within the discretion of the trial court." Harper v. State.
Kennedy v. State.
Prior to trial, Sylvester's co-defendant Rodriguez filed a motion to sever his trial from that of the other two co-defendants (Sylvester and Cruz). After a hearing on the issue, the trial court denied Rodriguez's motion, finding that the number of defendants would not create confusion and that the defenses of the three co-defendants were not antagonistic to each other. Although Rodriguez did not appeal the denial of his motion, in reviewing this issue, we find that the trial court's denial did not constitute an abuse of discretion. Thus, a motion to sever filed by Sylvester would have been futile, and his trial counsel's decision on this issue did not amount to ineffective assistance. See Nelson v. State;
(d) Sylvester contends that his trial counsel performed deficiently by failing to object when a police officer was recalled to the stand in order to testify about some of the State's exhibits, by failing to object to the admission of those exhibits, and by failing to cross-examine that officer. This contention also lacks merit.
First, Sylvester's claim that his trial counsel failed to object to the officer being recalled to testify by the State is belied by the record. In fact, the record shows that Sylvester's trial counsel joined in the objection to the State's recalling of the officer that was made by co-defendants' counsel. As this argument "is not supported by the record, it necessarily provides no basis for a claim of
(e) Sylvester also contends that his trial counsel performed deficiently by failing to request jury charges as to the lesser included offenses of robbery by intimidation and theft by taking. We disagree.
At the hearing on Sylvester's motion for new trial, his trial counsel was asked if he considered requesting jury charges on robbery by intimidation and theft by taking as lesser-included offenses of armed robbery. Trial counsel responded that he did recall discussing the issue but could not recall why he never made such a request. "Decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy." (Punctuation omitted.) Scott v. State.
(f) Sylvester further contends that his trial counsel performed deficiently by failing to object to juror misconduct. Evidence showed that this contention lacked merit.
During one of the recesses in the trial, the trial court held a bench conference after the jury had been excused to inform counsel for the State and defendants that it had noticed that one of the jurors was having trouble staying awake. The court asked counsel how they wanted to proceed, and all agreed with the proposal to continue monitoring the juror to determine if he needed to be excused. The trial continued, and no further concerns regarding this juror appear in the record. Sylvester now argues that his trial counsel's failure to object to this juror's conduct constituted ineffective assistance.
(Citation omitted.) Sullivan v. State.
Judgments affirmed in all three cases.
BARNES, P.J., and MIKELL, J., concur.