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MANHERTZ v. STATE
734 S.E.2d 406 (2012)
Court of Appeals of Georgia.
October 9, 2012.
Thereafter, Manhertz and Joyner were jointly indicted in the Superior Court of Henry County with fourteen counts of identity fraud,3 and in the same indictment, Manhertz was also charged with one count of giving a false name to a law-enforcement officer,4 and one count of driving without a license.5 Following a pre-trial Jackson-Denno hearing, the trial court ruled that the investigator's recorded interview of Joyner was admissible at trial. And during that same pre-trial hearing, the trial court heard and denied Joyner's motion to sever her trial from Manhertz's trial. During the joint trial, the police officers involved in the investigation of the case testified, as did twelve former tenants of the Point at Perimeter apartments who were victims of the identity-fraud scheme. In addition, the District Attorney's investigator testified regarding his interview of Joyner, and prior to the audio recording of the interview being played, the trial court instructed the jury that Joyner's out-of-court statement to the investigator could only be considered against her. Neither Manhertz nor Joyner testified in their own defense, and at the conclusion of the trial, the jury found both of them guilty on twelve counts of identity fraud.6 The jury also found Manhertz guilty on the giving-a-false-name and driving-without-a-license counts. Subsequently, both Manhertz and Joyner filed motions for new trial. In Manhertz's motion, he argued, inter alia, that his trial counsel rendered ineffective assistance. In her motion, Joyner argued, inter alia, that the State failed to prove venue beyond a reasonable doubt. The court held separate hearings on the respective motions and ultimately denied both. These appeals follow. 1. Manhertz contends that his trial counsel rendered ineffective assistance by failing to raise a Bruton7 objection when Joyner's recorded interview was played during trial. We disagree. In order to prevail on his claim of ineffective assistance of counsel, Manhertz must show that "counsel's performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."8 Furthermore, there is a strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption.9 Unless clearly erroneous, we will uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo.10 Here, Manhertz argues that the portion of Joyner's statement in which she claimed that the dancer Paradise told her that a person named Kane would pay her for her apartment tenants' vital information violated his Sixth Amendment right of confrontation under Bruton. Specifically, Manhertz argues that Joyner's statement lead the jury to believe that he was Kane and, therefore, because he could not cross-examine Joyner or Paradise, his trial counsel's failure to object to this portion of Joyner's recorded interview
constituted ineffective assistance. We disagree. It is well established that under the Confrontation Clause, a criminal defendant has "the right to confront witnesses against him and to cross-examine them."11 And when a jury is instructed that certain testimony or evidence may only be considered against a co-defendant, the jury is "presumed to follow the court's instruction and the testimony or evidence is not considered to be against the defendant."12 However, in Bruton, the Supreme Court of the United States
2. John Milton, Paradise Lost 234, bk. IX, ll. 249 (G. Routledge and sons ed. 1905) (1674).
3. See OCGA § 16-9-121(a)(1).
4. See OCGA § 16-10-25.
5. See OCGA § 40-5-20(a).
6. Two of the identity-fraud counts were dismissed because the victims currently resided outside the State and could not attend the trial.
7. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
12. Id. (punctuation omitted).
13. Id. (citation and punctuation omitted); see Richardson v. Marsh, 481 U.S. 200, 207(II), 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620.
14. Moss, 275 Ga. at 98(2), 561 S.E.2d 382; see Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620.
16. Moss, 275 Ga. at 98(2), 561 S.E.2d 382 (punctuation omitted); see Richardson, 481 U.S. at 208, 107 S.Ct. 1702.
17. Moss, 275 Ga. at 98(2), 561 S.E.2d 382; see Thomas v. State, 268 Ga. 135, 137-38(6), 485 S.E.2d 783 (1997) ("For the admission of a co-defendant's statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant." (punctuation omitted)); Garlington v. State, 268 Ga.App. 264, 267-68(1)(a), 601 S.E.2d 793 (2004).
18. See Moss, 275 Ga. at 99(2), 561 S.E.2d 382 (holding that admission of non-testifying co-defendant's statement to police that murder defendant came to his apartment and went in bathroom and stayed there for awhile did not violate Bruton rule because statement, standing alone, did not clearly incriminate defendant but only became incriminating when linked with other evidence); Thomas, 268 Ga. at 137-38(6), 485 S.E.2d 783 (holding that co-defendant's statement, that at time of defendant's arrest for kidnapping, which was unrelated to shootings for which defendant was now on trial, defendant had a pistol, which he had bought, did not clearly inculpate defendant and, thus, did not constitute Bruton error).
19. Although in this appeal, Manhertz argues that his trial counsel rendered ineffective assistance by failing to make a Bruton objection to Joyner's statement, an objection solely on hearsay grounds would have similarly lacked merit. See Munsford v. State, 235 Ga. 38, 43-44, 218 S.E.2d 792 (1975) (holding that when the testimony relating each of the statements by co-defendants was admissible against at least one of the co-defendants, the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants).
24. OCGA § 16-9-121(a)(1).
25. OCGA §§ 16-9-120(4)(A), (B), (C), (L).
26. See Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2(a).
27. OCGA § 16-9-125.
28. OCGA § 16-2-20(a).
29. OCGA § 16-2-20(b)(3).
30. Kilgore v. State, 251 Ga. 291, 299(3)(c), 305 S.E.2d 82 (1983).
32. See OCGA § 16-9-125.
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