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Docket Number

A03A0016.

Attorney(S)

Charles H. Frier, for appellant. Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judges

Gary Blaylock Andrews

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Smart Summary

Case Summary: Hurst v. The State, A03A0016 (Court of Appeals of Georgia, Apr. 3, 2003)

Citation details in opinion: Docket A03A0016; Court of Appeals of Georgia; Decided April 3, 2003. Presiding Judge: Andrews. Barnes and Adams, JJ., concur. Counsel of record: Charles H. Frier for appellant; Paul L. Howard, Jr., District Attorney, and Christopher M. Quinn, Assistant District Attorney, for appellee.

Factual and Procedural Background

The appellant, Samorial Lopeze Hurst, was tried before a jury in Fulton Superior Court and found guilty of two counts of armed robbery. The convictions arose from two separate robberies of Wendy's restaurants.

The first robbery occurred on December 13, 1998. A Wendy's employee testified that Hurst approached the drive-in window, pointed a handgun at her, demanded money, reached through the window, and took over $500 from the cash register. A customer reported the tag number of the car used by the robber; police arrested Hurst the following day driving a stolen car bearing that tag number.

After being released from custody following the first arrest, Hurst was later linked to and charged with a second robbery that occurred on April 10, 1999. A second Wendy's employee testified that Hurst forced open the drive-in window, placed a handgun covered with a towel on the window ledge, reached in, and took about $43 from the cash register. That employee identified Hurst in a police photo lineup, and Hurst was arrested and charged in connection with the second incident.

Hurst appealed his convictions, asserting (1) insufficiency of the evidence to support the armed robbery convictions, (2) that the senior judge who presided was not properly appointed under OCGA § 15-1-9.2 (claiming the appointment order was signed before trial but not filed until afterward), and (3) ineffective assistance of trial counsel on various grounds.

Legal Issues Presented

Whether the evidence was sufficient to sustain convictions for two counts of armed robbery.
Whether Hurst's conviction is void because the senior judge who presided at trial was not properly appointed pursuant to OCGA § 15-1-9.2 (specifically, because the order appointing the judge was not filed until after the trial).
Whether trial counsel rendered ineffective assistance by (a) failing to move for a directed verdict on insufficiency of the evidence and (b) failing to object to the trial judge's authority to try the case.

Arguments of the Parties

Appellant's Arguments

Hurst contended the State's evidence was insufficient to prove he committed the two armed robberies as charged.
Hurst argued the conviction was void because the senior judge who presided was not properly appointed under OCGA § 15-1-9.2; specifically, the appointment order was not filed until after the trial, although signed before trial.
Hurst asserted various ineffective-assistance-of-counsel claims, including that trial counsel should have moved for a directed verdict based on insufficient evidence and should have objected to the trial judge's authority to preside.

The opinion does not contain a detailed account of the appellee's (State's) separate trial- or appellate-level argumentative presentation; rather, the opinion summarizes the evidence the State produced and resolves the appellant's claims.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia, 443 U.S. 307 (1979)	Standard for sufficiency of the evidence — whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.	The court applied the Jackson standard to conclude that the evidence presented (witness testimony about the robberies and related identification/arrest evidence) was sufficient to sustain convictions for both armed robberies.
Jackson v. State, 158 Ga. App. 702, 282 S.E.2d 181 (1981)	That testimony establishing the amount taken from a business is sufficient to show the taking of the property's owner as alleged in an indictment.	The court relied on this precedent to hold that employees' testimony that Hurst took about $500 and $43 respectively was sufficient to prove he took Wendy's property as alleged.
Hughes v. State, 185 Ga. App. 40, 363 S.E.2d 336 (1987)	Circumstantial evidence regarding appearance/shape of an object may be sufficient to infer that the object was a handgun.	The court cited Hughes to support the conclusion that testimony describing the object wrapped in a towel as having the shape of a handgun provided sufficient circumstantial evidence that a handgun was present during the April 1999 robbery.
Bennett v. Jones, 218 Ga. App. 714, 463 S.E.2d 158 (1995)	Procedural principle on waiver — certain claims are waived if not raised at trial but first raised in a motion for new trial.	The court applied Bennett to hold that Hurst's appointment/appointment-order defect claim was waived because it was not raised until the motion for new trial.
Marsh v. Resolution Trust Corp., 211 Ga. App. 216, 439 S.E.2d 75 (1993)	An order appointing a judge to assist the court, satisfying the requirements of a statute similar to OCGA § 15-1-9.2, is not necessarily deficient if not filed until after trial commencement.	The court cited Marsh to explain that even if Hurst's appointment claim had not been waived, the late filing of the appointment order would not render the appointment defective under related precedent.
Strickland v. Washington, 466 U.S. 668 (1984)	Standard governing claims of ineffective assistance of counsel (performance and prejudice requirements).	The court applied Strickland to conclude that, given its holdings on sufficiency and judge appointment, Hurst could not show deficient performance or prejudice for the alleged failures by trial counsel; therefore the ineffective-assistance claims failed.

Court's Reasoning and Analysis

The court's analysis is presented in three divisions corresponding to the appellant's principal claims.

Division 1 — Sufficiency of the Evidence

The court first reviewed the trial evidence: eyewitness testimony describing two separate armed robberies at Wendy's (December 13, 1998 and April 10, 1999), monetary amounts taken ($500+ and about $43), a witness report of the fleeing vehicle's tag number followed by Hurst's arrest driving a stolen car with that tag, and an identification of Hurst in a photo lineup for the second robbery.

Applying the Jackson v. Virginia standard, the court concluded that a rational trier of fact could find the essential elements of armed robbery beyond a reasonable doubt. The court further relied on Jackson v. State to treat the employees' testimony about the amounts taken as sufficient proof that the property taken belonged to Wendy's as alleged. For the April 1999 incident, the court addressed the issue of the handgun's presence: one employee testified that Hurst placed an object wrapped in a towel that looked like a handgun; relying on Hughes v. State, the court treated that testimony as sufficient circumstantial evidence from which the presence of a handgun could be inferred. On these bases the court found the evidence sufficient to support both armed-robbery convictions.

Division 2 — Appointment of the Trial Judge

Hurst argued the senior judge who presided was not properly appointed under OCGA § 15-1-9.2 because, although the order appointing the judge was signed prior to trial, it was not filed until after the trial. The court held that this claim was waived because Hurst failed to raise it until the motion for new trial, citing Bennett v. Jones. The court went on to state that even if the claim were not waived, precedent (Marsh v. Resolution Trust Corp.) established that an appointment order is not defective merely because it was not filed until after the commencement of trial. The court also noted in an accompanying footnote that Hurst raised additional appointment-related claims on appeal, but the court would not address claims not raised or ruled upon in the trial court.

Division 3 — Ineffective Assistance of Counsel

Hurst asserted various ineffective-assistance claims, including counsel's alleged failures to move for a directed verdict and to object to the trial judge's authority. The court applied the Strickland standard and concluded there was no basis for these claims because the court had already determined (in divisions 1 and 2) that the evidence was sufficient and that the appointment order was sufficient. Because the underlying bases for the alleged failures (i.e., insufficiency of evidence and judge-appointment defect) were rejected, Hurst could not establish deficient performance or prejudice under Strickland.

Holding and Implications

Holding: The Court of Appeals affirmed the judgment of conviction. (Judgment affirmed; Barnes and Adams, JJ., concur.)

Implications:

The direct effect is that Hurst's convictions for two counts of armed robbery are affirmed and the trial court's judgment remains in force.
The court rejected challenges to evidentiary sufficiency, the propriety of the trial judge's appointment (both on waiver and on the merits under cited precedent), and ineffective-assistance claims dependent on those premises.
The opinion applies existing precedent (Jackson, Jackson v. State, Hughes, Bennett, Marsh, and Strickland) to the facts of this case; it does not purport to create new law or novel legal principles beyond those applications.

Note: Where the provided opinion did not contain additional specific party argumentation or broader policy analysis, this summary omits those elements and confines itself to the court's statements and citations as contained in the opinion.

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HURST v. THE STATE

ANDREWS, Presiding Judge.

Samorial Lopeze Hurst was found guilty by a jury of two counts of armed robbery. Finding no merit in the claims of error made by Hurst on appeal, we affirm the judgment of conviction.

1. The State produced evidence that Hurst used a handgun to rob two Wendy's restaurants. A Wendy's employee testified that on December 13, 1998, Hurst approached the drive-in window where she was working and pointed a handgun at her and demanded money. Hurst then reached inside the window and took over $500.00 from the cash register. A Wendy's customer reported the tag number of the car Hurst used to flee from the robbery, and police arrested Hurst a day after the robbery driving a stolen car bearing the reported tag number.

After Hurst was released from custody, he committed the second armed robbery. Another Wendy's employee testified that on April 10, 1999, Hurst approached the drive-in window where she was working, forced open the window from the outside, and placed a handgun with a towel over it on the window ledge. He then reached in the window and took about $43 from the cash register. After the employee identified Hurst as the robber in a photo line-up conducted by police, Hurst was arrested again and charged with the second robbery.

The evidence was sufficient to prove beyond a reasonable doubt that Hurst was guilty of both armed robberies. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979). Contrary to Hurst's contention, testimony from the Wendy's employees that Hurst took about $500.00 and $43.00 respectively from the Wendy's cash registers in the robberies was sufficient to show that he took the property of Wendy's as alleged in the indictment. Jackson v. State, 158 Ga. App. 702 ( 282 S.E.2d 181) (1981). Testimony from one of the employees that Hurst used what appeared to be a handgun wrapped in a towel was also sufficient to show that the April 1999 robbery was accomplished by use of a handgun as alleged in the indictment. Testimony that the shape of the object wrapped in the towel looked like a handgun and convinced the employee that it was a handgun was sufficient circumstantial evidence from which the presence of a handgun could be inferred. Hughes v. State, 185 Ga. App. 40 ( 363 S.E.2d 336) (1987).

2. Hurst claims that his conviction was void because the senior judge who presided over the trial was not properly appointed pursuant to the requirements of OCGA § 15-1-9.2. Specifically, Hurst argued at the hearing on the motion for new trial that the order appointing the judge signed before the trial was not filed until after the trial. This claim was waived by the failure to raise it until the motion for new trial. Bennett v. Jones, 218 Ga. App. 714, 715 ( 463 S.E.2d 158) (1995). But even if the claim had not been waived, we have previously held that an order appointing a judge to assist the court created in compliance with the similar requirements of OCGA § 15-1-9.1 was not deficient just because it was not filed until after the commencement of the trial. Marsh v. Resolution Trust Corp., 211 Ga. App. 216, 217-218 ( 439 S.E.2d 75) (1993).

Hurst makes additional claims on appeal that the appointment requirements were not strictly followed. However, we will not address claims not raised or ruled upon in the trial court.

3. Finally, Hurst asserts on various grounds that his trial counsel was ineffective.

Based on our holdings in divisions 1 and 2, supra, that the evidence was sufficient to support the conviction and the appointment order was sufficient, there is no basis for Hurst's claims that trial counsel was ineffective for failing to move for a directed verdict on insufficiency of the evidence or for failing to object to the trial judge's authority to try the case. Strickland v. Washington, 466 U.S. 668 ( 104 S.Ct. 2052, 80 L.E.2d 674) (1984).

Judgment affirmed. Barnes and Adams, JJ., concur.