Monday, July 18, 2011

Theft by Receiving and Ineffective Assistance of Counsel

Like Oregon, Georgia makes the receipt of stolen property a crime. Georgia Code § 16-8-7(a) states that a

person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. `Receiving’ means acquiring possession or control or lending on the security of the property.

Leslie E. Fields III was convicted of “misdemeanor theft by receiving stolen property, misdemeanor theft by deception, and two counts of felony theft by receiving stolen property” based on the following facts:

[O]n June 11, 2009, three laptop computers were stolen from the shelf of an Office Depot in Fulton County. On June 12, 2009, Khalfani Mukabi, who was staying a few doors down from Fields at an extended-stay motel in Gwinnett County, noticed Fields offering to sell a laptop to a friend, and Mukabi expressed interest in buying it. The men agreed on a price of $375, and Mukabi paid Fields a $100 down payment, completing the transaction approximately four days later. The serial number on that laptop was later determined to match one of the computers stolen from the Office Depot.

Office Depot reported the missing laptops to its loss prevention investigator, who obtained surveillance video showing the man stealing the laptops, and who activated tracking software that ultimately identified Mukabi as the user of one laptop. Police were contacted and they interviewed Mukabi, determining that his purchase was innocent.

Police also spoke to but did not arrest Fields, who denied any wrongdoing and checked out of the motel that night. Police then obtained a warrant to search a nearby storage unit rented by Fields which Mukabi had described to police. In the storage unit, police found a substantial amount of electronic and musical equipment, three golf shirts that were later confirmed to be stolen from a sporting goods store, and the two other laptops stolen from Office Depot.

Fields v. State, __ S.E.2d __, 2011 WL 2586272 (Georgia Court of Appeals 2011).

Fields was arrested and charged with the crimes noted above. Fields v. State, supra. A jury found him guilty “on all counts except for the theft by receiving the golf shirts.” Fields v. State, supra. He appealed his conviction on the other charges. Fields v. State, supra.

Field’s first argument on appeal was that “the evidence was insufficient to support the guilty verdict as to the theft by receiving counts because it showed that he was the principal thief of the laptops, not that he received them after they were stolen.” Fields v. State, supra. In other words, he’s arguing, quite logically, that he should have been charged with stealing the laptops, not with receiving them after someone else had stolen them.

In ruling on this argument, the Court of Appeals first reviewed the language of the statute quoted above, and then noted that the state Supreme Court had earlier explained that

`[t]he offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is that the goods had been stolen by some person other than the accused.

Fields v. State, supra (quoting Thomas v. State, 261 Ga. 854, 413 S.E.2d 196 (1992) (emphasis in the opinion).

The prosecution argued, in response, that “it ha[d] no burden to prove that the accused did not steal the goods if the principal thief was unknown”, but the Court of Appeals didn’t agree. Fields v. State, supra. It noted that in the Thomas case the state Supreme Court found that if “`direct and uncontested evidence identifies the defendant as the original thief, [he] cannot be convicted of theft by receiving.’” Fields v. State, supra (quoting Thomas v. State). The Court of Appeals explained that there were video and

still photographs, clearly revealing Fields's unobstructed face and body from several angles, depicting him as the thief stealing the laptops. [His] features, which matched those of the man in the video, were described by the interviewing officer who identified Fields in the courtroom.

Two witnesses testified Fields appeared to be the man in the video, and the State urged in closing argument that Fields was the man stealing the laptops in the video. Thus, in light of the uncontroverted direct evidence that Fields was the original thief, the State's closing argument that Fields was the original thief, and the fact that `no evidence identified any original thief other than’ Fields, we conclude that Fields' conviction on the theft by receiving counts must be reversed.

Fields v. State, supra (quoting Phillips v. State, 269 Ga. App. 631, 604 S.E.2d 520 (2004)).

The court upheld the theft by deception conviction because it found the evidence “was sufficient to support that guilty verdict because it showed that at the Gwinnett County motel, Fields obtained payment for the stolen laptop after representing it to be marketable and not stolen”. Fields v. State, supra.

Fields next argued that “the trial court erred by admitting improper character evidence consisting of video and photographs of him stealing the laptops from the Office Depot.” Fields v. State, supra. As Wikipedia explains, “[c]haracter evidence is a term used in the law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person.” In the federal system and, as far as I know, all the states, the introduction of character evidence is generally rejected, at least as the default position. As the commentary to Federal Rule of Evidence 404 notes,

[c]haracter evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as `circumstantial.’ . . .

In most jurisdictions, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character . . . , in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide . . . , and the prosecution may introduce similar evidence in rebuttal of the character evidence. . . .

Fields was apparently arguing that the trial judge erred by letting the jury see the photos and videos of him stealing the laptops because that constituted character evidence, as defined above. Fields v. State, supra. The Court of Appeals rejected his argument:

[T]he evidence . . . showed the theft of the very laptops Fields was accused of receiving. `Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant's character is incidentally placed in issue.’ The videotape was relevant to show that the laptops at issue were stolen.

Fields v. State, supra (quoting Smith v. State, 690 S.E.2d 449, 302 Ga. App. 128 (2010)). The Court of Appeals therefore held that the trial judge did not err in allowing the evidence to be introduced. Fields v. State, supra.

Finally, my favorite: Fields claimed he received ineffective assistance of trial counsel. Fields v. State, supra. As Wikipedia notes, in Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court explained that the Sixth Amendment, which states that in criminal prosecutions defendants are entitled “to have the Assistance of Counsel” in their defense, requires not merely that counsel be provided (e.g., appointed for those who can’t afford an attorney”, is not enough. As Wikipedia explains, the fact that

`a person who happens to be a lawyer is present at trial alongside the accused... is not enough to satisfy the constitutional command. Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective . . . has two components. First, the defendant must show that counsel's performance was `deficient,’ such that counsel's errors were `so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.’ Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, `it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’

Wikipedia, supra (quoting Strickland v. Washington).

Sounds like a reasonable argument, right? Well, Fields actually had one little problem:

Because Fields proceeded pro se at trial, he cannot raise an ineffective assistance of counsel claim with regard to issues that arose during trial. To the extent that he complains of ineffective assistance of counsel prior to trial, the record shows that he received his requested pro-se status prior to trial, he was allowed to file pre-trial motions on his own behalf (which were addressed by the trial court), and he has failed to demonstrate how the prior pre-trial representation prejudiced him. Accordingly, he has failed to meet his burden under Strickland.

Fields v. State, supra.

In other words, Fields chose to represent himself, rather than having a lawyer, and therefore could not complain about the inadequacy, if any, of his own performance at trial.

Because proceeding pro se in a criminal trial is such a serious decision, most courts have a process they use to be sure the defendant understands what he/she is getting into. They may also appoint (especially in serious cases) a stand-by counsel who can help the defendant or take over, if necessary. You can read what’s involved in that process in federal criminal trials on pages 3-5 of the Benchbook for U.S. District Court Judges (4th ed. Rev. 2000), which you can find here. I’m sure Georgia has something similar.


Anonymous said...

So I guess this means that laptops sold by Office Depot contain hidden tracking software in them. Great. Now I know where not to buy computers from!

Or maybe I'll just buy one, find the software, and turn around and sue them!

Anonymous said...

So it sounds like the only conviction left standing was a misdemeanor theft by deception charge. Can the state retry him on a re-done felony theft or has jeophardy attached?

By the way, did you see that his appeal was also pro se, too? That's too funny!