Owens v. State, 609 S.E.2d 670 (Ga. Ct. App. 2005). · Go Syfert
Owens v. State, 609 S.E.2d 670 (Ga. Ct. App. 2005). Cases Citing This Book View Copy Cite
82 citation events (82 in the last 25 years) across 2 distinct courts.
Strongest positive: Frey v. the State (gactapp, 2016-09-08)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 33 distinct citers.
discussed Cited as authority (quoted) Frey v. the State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence low
a court's admonition to correct a misleading question by counsel does not rise to the level of an expression or intimation of opinion by the judge as to matters proved or guilt of the accused.
discussed Cited as authority (quoted) Williams v. the State (2×) also: Cited "see"
Ga. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.
discussed Cited as authority (quoted) Conyers v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2010 · quote attribution · 1 verbatim quote · confidence low
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance
discussed Cited as authority (quoted) Berman v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2006 · quote attribution · 1 verbatim quote · confidence low
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.
discussed Cited as authority (quoted) Johnson v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2006 · quote attribution · 1 verbatim quote · confidence low
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.
discussed Cited as authority (quoted) Hall v. State (2×) also: Cited "see"
Ga. Ct. App. · 2005 · signal: see · quote attribution · 1 verbatim quote · confidence high
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.
discussed Cited as authority (quoted) Ford v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2005 · quote attribution · 1 verbatim quote · confidence low
failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.
discussed Cited as authority (rule) Dennis Penix v. State
Ga. Ct. App. · 2023 · confidence medium
The “intimidation essential to robbery must either precede or be contemporaneous with the taking.” Johnson v. State, 247 Ga. App. 157, 159 (1) ( 543 SE2d 439 ) (2000), overruled on other grounds, Owens v. State, 271 Ga. App. 365, 369 (3) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Gary Durham v. State
Ga. Ct. App. · 2020 · confidence medium
Here, we conclude that the trial court was admonishing defense counsel to correct what it believed to be a misleading question to the victim, which “does not 18 rise to the level of an expression or intimation of opinion by the judge as to matters proved or guilt of the accused.” Owens v. State, 271 Ga. App. 365, 371 (5) (c) (i) ( 609 SE2d 670 ) (2005) (citation and punctuation omitted) (trial court did not comment on the evidence or credibility of a witness when it commented to the defense attorney: “Now, [defense counsel], that’s not the question you asked him. . . .
discussed Cited as authority (rule) Cooper v. the State
Ga. Ct. App. · 2017 · confidence medium
As explained in Division 2, Cooper’s contention regarding the language in the trial court’s instruction on the inference of guilt related to recent possession is meritless, and “[fjailure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” Owens v. State, 271 Ga. App. 365, 370 (5) ( 609 SE2d 670 ) (2005).
cited Cited as authority (rule) Robert Mendez v. State
Ga. Ct. App. · 2014 · confidence medium
Owens, supra, 271 Ga.App. at 370 (5).
discussed Cited as authority (rule) Mendez v. State (2×)
Ga. Ct. App. · 2014 · confidence medium
(Citation, punctuation and footnote omitted.) Owens v. State, 271 Ga. App. 365, 369-370 (5) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Rainey v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
(Citation, punctuation and footnote omitted.) Owens v. State, 271 Ga. App. 365, 369-370 (5) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Kenneth Shamar Rainey v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
(Citation, punctuation, and footnote omitted.) Owens v. State, 271 Ga. App. 365, 369-370 (5) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Crane v. State
Ga. Ct. App. · 2008 · confidence medium
J., and Johnson, B J., concur. 1 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 2 Espinosa v. State, 285 Ga. App. 69, 72 (2) ( 645 SE2d 529 ) (2007) (footnote omitted). 3 Id. 4 See Riggins v. State, 279 Ga. 407, 409 (2) ( 614 SE2d 70 ) (2005). 5 Turpin v. Curtis, 278 Ga. 698, 699 (1) ( 606 SE2d 244 ) (2004) (citations and punctuation omitted); see Strickland, supra at 692 (III) (B) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”); United States v. Cronic, 466 U. S. 648, 659-660 (104 SC 2039, 80 LE2d 657) (1984) (recogni…
cited Cited as authority (rule) Mitchell v. State
Ga. · 2008 · confidence medium
Johnson v. State, 247 Ga. App. 157, 161 (6) ( 543 SE2d 439 ) (2000), overruled on other grounds, Owens v. State, 271 Ga. App. 365, 368-369 (3) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Hill v. State
Ga. Ct. App. · 2008 · confidence medium
M., 252 Ga. App. 716, 720 (2) ( 556 SE2d 883 ) (2001) (one does not have standing to assert that another’s right to due process has been violated). 15 See Dunn v. State, 262 Ga. App. 643, 645 (2) ( 586 SE2d 352 ) (2003) (where allegedly suggestive identification was not set up by police, but occurred through witness’s personal observation, the defendant’s due process rights were not violated and the issue is one of witness credibility). 16 See Callahan v. State, 280 Ga. App. 323, 329 (2) (a) ( 634 SE2d 102 ) (2006) (there can be no error in failing to suppress allegedly suggestive identi…
discussed Cited as authority (rule) Phillips v. State
Ga. Ct. App. · 2007 · confidence medium
Owens v. State, 271 Ga. App. 365, 369-370 (5) ( 609 SE2d 670 ) (2005). 1 Eady v. State, 256 Ga. App. 696 ( 569 SE2d 603 ) (2002). 2 Taylor v. State, 266 Ga. App. 818 ( 598 SE2d 122 ) (2004). 3 Warren v. State, 265 Ga. App. 109, 110 ( 592 SE2d 879 ) (2004). 4 Mickens v. State, 277 Ga. 627, 629 ( 593 SE2d 350 ) (2004). 5 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 6 Bailey v. State, 269 Ga. App. 262 (1) ( 603 SE2d 786 ) (2004). 7 Estes v. State, 234 Ga. App. 150, 151 ( 505 SE2d 840 ) (1998). 8 Nelson v. State, 278 Ga. App. 548, 551 (3) ( 629 SE2d 410 ) (2006). 9 Love v. …
discussed Cited as authority (rule) Daugherty v. State
Ga. Ct. App. · 2007 · confidence medium
Owens v. State, 271 Ga. App. 365, 370 (5) ( 609 SE2d 670 ) (2005). (b) As demonstrated in Division 3, supra, the jury charge given by the trial court, as a whole, adequately covered the principles contained in an equal access charge.
discussed Cited as authority (rule) Hollman v. State
Ga. Ct. App. · 2006 · confidence medium
But the “[failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” (Citations and footnotes omitted.) Owens v. State, 271 Ga. App. 365, 370 (5) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Hill v. State (2×) also: Cited "see"
Ga. Ct. App. · 2006 · confidence medium
Owens v. State, 271 Ga. App. 365, 367 (2) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Jones v. State
Ga. · 2005 · confidence medium
However, if the same facts are used to prove the different offenses, the different crimes merge.” [Cit.] Johnson v. State, 247 Ga. App. 157, 162 (10) ( 543 SE2d 439 ) (2000), overruled on other grounds, Owens v. State, 271 Ga. App. 365, 369 (3) ( 609 SE2d 670 ) (2005).
examined Cited as authority (rule) Walker v. State (3×)
Ga. Ct. App. · 2005 · confidence medium
“The crimes of aggravated assault and kidnapping do not necessarily merge as a matter of law, although they may do so as a matter of fact when they are based on the same conduct.” (Citation and punctuation omitted.) Owens v. State, 271 Ga. App. 365, 367 (2) ( 609 SE2d 670 ) (2005).
discussed Cited as authority (rule) Drake v. State
Ga. Ct. App. · 2005 · confidence medium
Miller and Bernes, JJ., concur. 1 Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). 2 Leeks v. State, 226 Ga. App. 227 (1) ( 483 SE2d 691 ) (1997). 3 Jefferson v. State, 273 Ga. App. 61, 62 (1) ( 614 SE2d 182 ) (2005). 4 OCGA§ 16-8-18. 5 Sinclair v. State, 248 Ga. App. 132, 133 (1) ( 546 SE2d 7 ) (2001). 6 Watson v. State, 252 Ga. App. 244, 247 (3) ( 555 SE2d 896 ) (2001). 7 Stone v. State, 166 Ga. App. 245 (1) ( 304 SE2d 94 ) (1983). 8 McClarity v. State, 234 Ga. App. 348, 349 (2) ( 506 SE2d 392 ) (1998). 9 Chastain v. State, 239 Ga. App. 602, 605 (2) ( 521 SE2d 657 )…
discussed Cited as authority (rule) Brown v. State
Ga. Ct. App. · 2005 · confidence medium
Counts 12 through 19 were alleged to have occurred on March 6, 2002, and the remaining counts, 20 through 25, were alleged to have occurred on March 22, 2002. 2 (Punctuation and footnote omitted.) Dean v. State, 252 Ga. App. 204 ( 555 SE2d 868 ) (2001). 3 The foreman was held in contempt because he offered to sell Brown information that he said would be helpful in securing a new trial. 4 (Citation and punctuation omitted.) Fulcher v. State, 259 Ga. App. 648, 651 (4) ( 578 SE2d 264 ) (2003). 5 (Footnote omitted.) Merritt v. State, 248 Ga. App. 709, 711 (1) ( 548 SE2d 427 ) (2001). 6 270 Ga. 441…
discussed Cited as authority (rule) Davis v. State
Ga. Ct. App. · 2005 · confidence medium
Given that Davis’s defense was that intercourse was consensual, we find it highly unlikely that an alibi witness would have strengthened Davis’s case. 19 See Jividen v. State, 256 Ga. App. 642, 644 (1) (a) ( 569 SE2d 589 ) (2002); Gadson v. State, 252 Ga. App. 347, 352 (11) (c) ( 556 SE2d 449 ) (2001). 20 See Gadson, supra at 352 (11) (b). 21 Id. 22 Owens v. State, 271 Ga. App. 365, 370 (5) ( 609 SE2d 670 ) (2005). 23 See Lewis v. State, 229 Ga. App. 827, 830 (3) ( 494 SE2d 678 ) (1997) (“The failure to raise *403 and pursue [an] issue of ineffectiveness of counsel in the trial court is …
discussed Cited as authority (rule) Clark v. State
Ga. Ct. App. · 2005 · confidence medium
Miller and Bernes, JJ., concur. 1 OCGA § 16-7-1. 2 OCGA § 16-10-25. 3 Turley v. State, 265 Ga. App. 385, 386 (1) ( 593 SE2d 916 ) (2004). 4 Owens v. State, 271 Ga. App. 365, 369 (4) ( 609 SE2d 670 ) (2005). 5 Pinson v. State, 266 Ga. App. 254, 258 (2) ( 596 SE2d 734 ) (2004).
discussed Cited "see" Glenn Maxwell v. State (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See generally Johnson v. State, 247 Ga. App. 157, 160 (2) ( 543 SE2d 439 ) (2015), overruled in part on other grounds in Owens v. State, 271 Ga. App. 365, 369 (3) ( 609 SE2d 670 ) (2005). 2.
discussed Cited "see" Wilder v. State (2×)
Ga. Ct. App. · 2010 · signal: see · confidence high
See Owens v. State, 271 Ga. App. 365, 370 (5) ( 609 SE2d 670 ) (2005); see also Berman v. State, 279 Ga. App. 867, 872 (6) ( 632 SE2d 757 ) (2006) (defendant did not establish that special demurrer would have been successful). 4.
discussed Cited "see, e.g." Charles Jones v. State (2×)
Ga. Ct. App. · 2012 · signal: see, e.g. · confidence medium
See, e.g., Owens v. State, 271 Ga. App. 365, 370 (5) (a) ( 609 SE2d 670 ) (2005) (offenses that occurred within hours of escape are connected to escape offense for joinder purposes).
discussed Cited "see, e.g." Jones v. State (2×)
Ga. Ct. App. · 2012 · signal: see, e.g. · confidence medium
See, e.g., Owens v. State, 271 Ga. App. 365, 370 (5) (a) ( 609 SE2d 670 ) (2005) (offenses that occurred within hours of escape are connected to escape offense for joinder purposes).
discussed Cited "see, e.g." Jones v. State (2×)
Ga. Ct. App. · 2007 · signal: see also · confidence medium
See also Boykin v. State, 264 Ga. App. 836, 842 (6) ( 592 SE2d 426 ) (2003) (armed robbery did not merge with hijacking a motor vehicle). 7 Johnson v. State, 195 Ga. App. 723, 724 (2) ( 394 SE2d 586 ) (1990). 8 See Owens v. State, 271 Ga. App. 365, 367-368 (2) ( 609 SE2d 670 ) (2005) (first, defendant committed false imprisonment by holding victim at gunpoint; kidnapping occurred immediately after, when defendant forced victim from store proper to store’s hack office); OCGA § 16-5-40 (a) (“[a] person commits the offense of kidnapping when he abducts . . . any person without lawful authori…
examined Cited "see, e.g." Moody v. State (3×)
Ga. Ct. App. · 2006 · signal: see also · confidence medium
See also Owens v. State, 271 Ga. App. 365, 367 (1) ( 609 SE2d 670 ) (2005). 7 Shue v. State, 251 Ga. App. 50, 51 (1) ( 553 SE2d 348 ) (2001). 8 See Owens, supra; Lowery, supra. 9 (Punctuation omitted.) Thomas v. State, 273 Ga. App. 357, 359 (1) ( 615 SE2d 196 ) (2005). 10 See Zilinmon v. State, 234 Ga. 535, 538 (8) ( 216 SE2d 830 ) (1975); Haygood v. State, 154 Ga. App. 633, 635 (4) ( 269 SE2d 480 ) (1980).
Owens
v.
the State
A05A0451.
Court of Appeals of Georgia.
Jan 21, 2005.
609 S.E.2d 670
Lloyd J. Matthews, for appellant., Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.
Blackburn, Ruffin, Andrews, Johnson, Smith, Barnes, Miller, Ellington, Phipps, Mikell, Adams, Bernes.
Cited by 35 opinions  |  Published
3 passages pin-cited by 7 cases
Pinpoint authority: #7,955 of 633,719
Citer courts: Court of Appeals of Georgia (7)
BLACKBURN, Presiding Judge.

Leonard Marcel Owens appeals his jury trial conviction on two counts of armed robbery, [1] one count of aggravated assault, [2] two counts of kidnapping, [3] two counts of possessing a firearm during the commission of a felony, [4] one count of burglary, [5] and one count of kidnapping with bodily injury. [6] He raises numerous alleged errors, including insufficiency of the evidence and ineffective assistance of[*366] counsel. Discerning no error, we affirm.

1. Owens challenges the sufficiency of the evidence.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to support the jury’s verdict and determine if a rational trier of fact could find each essential element of the crimes charged beyond a reasonable doubt. We do not weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.

(Punctuation and footnote omitted.) Morgan v. State. 7 See Jackson v. Virginia. [8]

Viewed in this light, the evidence shows that shortly after noon on June 14, 2002, a gunman entered a convenience store in Henry County and, pointing his gun at the two brothers who owned the store, demanded the store’s cash. As one brother went with the gunman to the cash register, another gunman (Owens) entered the store and pointed a gun at the second brother to hold him at bay while the first gunman obtained the money. Once the cash registers were emptied, the gunmen forced the two brothers to the store’s back office, where the gunmen told them to remain while the gunmen escaped. After the gunmen left the store and entered their car, the first brother left the office and watched them drive away in a car whose tag number he observed.

The first brother phoned police and related the car’s tag number and description. A nearby officer soon observed the vehicle with the two gunmen inside and tried to apprehend them, but the gunmen sped away, leading local police on a chase that eventually ended in the gunmen abandoning their car and escaping at the end of a dead-end street.

Shortly thereafter in the vicinity, someone broke into a house and stole a gun and an electrical extension cord. Carrying the stolen gun and extension cord, Owens, at approximately 4:30 p.m., burst into an occupied house adjacent to the burglarized house, demanding that the elderly female occupant give him money and the keys to her car. Beating her with the stolen gun, he forced her into two other rooms[*367] of the home. She gave him her money and her car keys, and he then escaped in her Honda Accord vehicle that was parked in the driveway.

The next day, an officer observed Owens driving the stolen Honda through a red light. When the officer stopped Owens, the officer observed a ski mask in the vehicle, later identified as worn by the second gunman in the convenience store robbery. Owens was arrested, and, in a photo lineup and at trial, the elderly victim positively identified him as the robber who burst into her home. Evidence further showed that only weeks earlier, Owens had committed two armed robberies of retail businesses in the vicinity, which were similar in method to the armed robbery of the convenience store here.

This evidence sufficed to sustain the verdict finding Owens guilty of the armed robbery of the first store-owner brother, the aggravated assault of the second store-owner brother during that robbery, the kidnapping of the two brothers into the back office, the possession of a firearm during the armed robbery and also during the aggravated assault, the burglary of the unoccupied home, and the armed robbery and kidnapping with bodily injury of the elderly victim in the occupied home. Owens’s complaint that the evidence was weak is to no avail, as we do not weigh the evidence on appeal. Morgan, supra at 58 (1). His contention that the evidence only showed that he stole the elderly victim’s car keys from her immediate presence, and not her actual car as alleged in the indictment, also fails, as the theft of keys to a nearby car, which keys were stolen from the immediate presence of the victim, suffices to show the theft of the vehicle from the immediate presence of the victim. Johnson v. State. 9 Finally, his argument that the second store-owner brother was required to testify to sustain the aggravated assault conviction involving that brother must also fail, since the testimony of the first store-owner brother was sufficient. OCGA § 24-4-8 (“[t]he testimony of a single witness is generally sufficient to establish a fact”).

2. Owens contends that his aggravated assault conviction involving the second store-owner brother should have factually merged into his kidnapping conviction involving that same victim. “The crimes of aggravated assault and kidnapping do not necessarily merge as a matter of law, although they may do so as a matter of fact” when they are based on the same conduct. (Punctuation omitted.) Vining v. State. 10 Here the aggravated assault occurred when Owens pointed the gun at the second store-owner brother to hold him at bay during the robbery of the first brother. The kidnapping of that same second[*368] brother occurred when Owens and his cohort then forced both brothers into the store’s back office. “Under those circumstances, the aggravated assault was supported by facts separate from the kidnapping . . . and would not, therefore, be included as a matter of fact in” the kidnapping offense. Curtis v. State. 11 See Vining, supra at 817 (1).

3. Owens claims that his five-year sentences on the two possession of firearm during the commission of a felony convictions are void in that the sentences were consecutive to all other sentences given at the trial. Owens argues that under Johnson v. State, 12 a five-year sentence on a possession of a firearm during the commission of a felony conviction may only be consecutive to the underlying felony, and may not be consecutive to any other sentences handed out at the trial. We disagree.

Under OCGA§ 17-10-10, it is within the trial court’s discretion to fix sentences to either run consecutively or concurrently. Giles v. State; 13 Jefferson v. State. 14 , This discretion is circumscribed by OCGA § 16-11-106 (b) (5) (possession of weapon during commission of felony statute), which requires a five-year sentence thereunder “to run consecutively to any other sentence which the person has received.” The Supreme Court of Georgia in 1999 interpreted this statute to mean that the only sentence to which the trial court must consecutively run the five-year sentence is the sentence on the underlying felony to the possession of weapon offense. Busch v. State. 15 Emphasizing that “trial courts have been granted broad discretion to run sentences concurrently or consecutively,” Busch held that OCGA § 16-11-106’s only limit on that discretion was to require at a minimum that a sentence for the weapon possession offense be served consecutively to the underlying felony for that offense. Id. at 595.

Three years later in Braithwaite v. State, 16 the Supreme Court of Georgia reiterated this principle, holding that “a firearm possession sentence must only run consecutively to the sentence for its underlying felony conviction.” Because the weapon possession sentence could, in the trial court’s discretion, also run consecutively to other sentences, Braithwaite upheld the trial court’s decision there to run the three weapon possession sentences consecutively to each other also. Id. at 888-889 (9).

Citing Busch and Braithwaite, our Court in Pennymon v. State 17 [*369] similarly held that the trial court correctly ran the three weapon possession sentences consecutively to the underlying felonies and further properly exercised its discretion to run them not only consecutively to each other but also consecutively to other unrelated counts. “We summarily reject [the defendant’s] argument that OCGA § 16-11-106 required the trial court to run the sentences on [the weapon possession counts] concurrently with the sentence on [an unrelated count]. Nothing in the Code section or cases cited herein supports this proposition.” Id. at 455 (6).

As pointed out by Owens, however, our Court in 2000 in Division 9 of Johnson, 247 Ga. App. at 162, held otherwise. In Johnson, the trial court ordered a five-year sentence for possession of a knife during the commission of a crime to run consecutively to the defendant’s sentence for kidnapping with bodily injury (which kidnapping was not the underlying felony for the weapon possession charge). Johnson vacated that sentence, reasoning that a weapon possession sentence could only be run consecutively to the felony underlying the weapon possession offense and that the trial court had no discretion to run that sentence consecutively to any other sentences. Id. Because this holding of Johnson clearly contravenes the Supreme Court holdings in Busch and Braithwaite as well as our own decision in Pennymon, we hereby overrule Division 9 of Johnson.

4. Owens contends that the trial court erred in failing to engage in a separate and express balancing test to determine whether the probative value of the similar transactions outweighed their prejudicial impact. However, “[s]uch an explicit finding is not required.” Pinson v. State. 18 Rather, as stated in Farley v. State, 19 “a trial court’s finding that ‘other transactions’ evidence is relevant necessarily constitutes an implicit finding that the probative value of that evidence outweighs its prejudicial impact.” See Hopper v. State [20] (no explicit finding required).

5. Owens’s remaining enumerations of error all center on his claim that the trial court erred in finding he did not carry his burden of proving ineffective assistance of counsel. Our review of such enumerations is clear.

To establish a claim of ineffective assistance of counsel, [Owens] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of[*370] the trial would have been different but for that deficiency. There is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment. Moreover, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(Citations, punctuation and footnotes omitted.) Johnson v. State. 21

Almost all of Owens’s claims of inadequate performance by counsel arise out of counsel’s failure to object or to make certain motions on various issues. As set forth below, each of those objections or motions would have been without merit and futile. Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance. Hayes v. State; 22 Davis v. State 23

(a) Failure to Move to Sever. Owens first claims that his counsel erred in failing to move to sever the counts relating to the convenience store robbery from the counts relating to the residential burglary and robbery that took place later that day. Tellingly, when asked why he did not make such a motion, trial counsel testified that he believed such a motion lacked merit. We agree.

“Joinder of offenses is allowed when two or more offenses (1) have the same or similar character, even though they are not part of a single scheme or plan; (2) are based on the same conduct; (3) are based on a series of connected acts; or (4) constitute parts of a single scheme or plan.” Sanders v. State 24 Here, Owens’s acts in committing the residential burglary and robbery, which took place within hours of the convenience store robbery and in the vicinity of Owens’s escape therefrom, were part and parcel of his continuing escape, thus intertwining the offenses as a series of connected acts. See Carter v. State [25] (offenses occurring during or immediately after escape attempt are connected for joinder purposes to earlier offense from which escape was being attempted). Any motion to sever the offenses would have been without merit.

(b) Failure to Object to Similar Transactions. Owens asserts that inasmuch as no certificate of service was attached to the file copy of the State’s notice of intent to introduce similar transactions, counsel erred in failing to object to the introduction of those similar transactions. Significantly, Owens makes no claim and points to no evidence[*371] that his trial counsel was not served with such notice. Indeed, the evidence pointedly shows otherwise, as Owens’s trial counsel attended the similar transactions hearing that took place three months before trial pursuant to the filing of the notice. The State’s notice of intent to present evidence of similar transactions was the sole object of the hearing and was thoroughly discussed with full participation by Owens’s counsel. Any objection to the similar transaction evidence on the ground of lack of notice would have lacked merit.

(c) Failure to Object to Improper Judicial Comment. Owens claims his counsel erred in failing to object to three comments or questions made by the trial judge as evidence of improper judicial comment in violation of OCGA § 17-8-57. This statute forbids a trial judge in any criminal case from expressing or intimating his opinion to the jury as to what has or has not been proved or as to the guilt of the accused. As set forth below, none of the three comments or questions were improper under this statute.

(i) Correcting Attorney’s Misstatement. Owens first complains that his counsel failed to object when the court corrected a misstatement by counsel in the following colloquy involving counsel’s cross-examination of a police officer, who had just described the photo lineup identification of Owens’s cohort (Derrick Maxey):

Q. Right. As a result of her doing that, you issued a warrant for Mr. Derrick Maxey on behalf of that identification, didn’t you?
A. No, sir, I did not.
Q. You’re saying a warrant was not issued after that?
A. I don’t —
THE COURT: Now, Mr. Bowman, that’s not the question you asked him.
MR. BOWMAN: Okay.
THE COURT: It’s all right to ask him a question and get an answer, but it is not all right to misstate what you asked him.
MR. BOWMAN: Okay. I’m sorry, Judge.

A court’s admonition to correct a misleading question by counsel “does not rise to the level of an expression or intimation of opinion by the judge as to matters proved or guilt of the accused.” Wooten v. State. 26 Trial counsel quite properly recognized this by not objecting and by extending his apology to the court. Owens’s attempt to cast aspersions as to the court’s motivation for making such an admonition (allegedly based on the judge’s presiding at Owens’s cohort’s[*372] prior trial where Owens claims the cohort identified Owens as a participant in the convenience store robbery) not only lacks any factual basis in the record but is irrelevant and speculative at best.

(ii) Clarifying Language Communication Problem. Owens next complains that his counsel failed to object when the court asked questions of a witness to clarify an apparent language barrier miscommunication between Owens’s counsel and the witness, whose first language was obviously not English. “It is a court’s right, and oftentimes its duty, to question a witness in order to develop fully the truth of a case. [Cits.] The extent of questioning is largely within the discretion of the court provided the court does not violate § 17-8-57.” Eagle v. State. 27 Straightforward inquiries to clarify testimony are not an improper expression of the court’s opinion. Jackson v. State. 28 Here the court’s inquiries addressed an obvious miscommunication problem and did not contain an expression or opinion on the evidence or on Owens’s guilt. Compare Paul v. State [29] (judge’s repeated argumentative questions to defendant which were clearly intended to discredit the defendant constituted an improper comment on the evidence).

(iii) Clarifying Term of Art. Owens’s third complaint is that his counsel erred in failing to object to the court’s posing a question to a police officer to explain the meaning of an unfamiliar expression used by the officer during his testimony. Specifically, the court observed that the officer had twice testified that he had read the elderly victim “a photographic admonition.” Noting that the jury may not have understood this term of art, the court asked the officer to define such for the jury, which the officer did. Inasmuch as the court “has the right to propound a question or series of questions to develop the truth of the case,” Sanders v. State, 30 the court’s efforts here to have a witness explain an unfamiliar expression to the jury did not constitute a comment on the evidence or on Owens’s guilt.

(d) Asking Officer Source of Photos. Owens’s final complaint about his attorney’s performance is that his attorney asked an officer whether the photos for a photo lineup were from police booking records, to which the officer responded that the source was the Department of Corrections website and a local county detective. Owens laments that this question unwisely identified the individuals as former criminals and thus raised the issue of character to Owens’s disadvantage. What Owens omits to state, however, is that his photo[*373] was not in this particular lineup and thus the question in no way could have brought Owens’s character into issue. Rather, this particular lineup included a photo of Owens’s cohort in the convenience store robbery; in context, the phrasing and strategy of the question were apparently to besmirch the cohort as having prior dealings with police so that the jury would tend to blame him for the convenience store robbery and not Owens. “As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Punctuation omitted.) Robinson v. State. 31

Decided January 21, 2005. Lloyd J. Matthews, for appellant. Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

We hold that the court did not clearly err in finding that Owens did not carry his burden of proving ineffective assistance.

Judgment affirmed.

Ruffin, C. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Barnes, Miller, Ellington, Phipps, Mikell, Adams and Bernes, JJ., concur.
7

Morgan v. State, 255 Ga. App. 58 (1) (564 SE2d 467) (2002).

8

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

9

Johnson v. State, 246 Ga. App. 109, 112 (3) (539 SE2d 605) (2000).

10

Vining v. State, 195 Ga. App. 816, 817 (1) (395 SE2d 17) (1990).

11

Curtis v. State, 275 Ga. 576, 580 (3) (571 SE2d 376) (2002).

12

Johnson v. State, 247 Ga. App. 157, 162 (9) (543 SE2d 439) (2000).

13

Giles v. State, 211 Ga. App. 618 (441 SE2d 101) (1993).

14

Jefferson v. State, 209 Ga. App. 859, 863 (3) (434 SE2d 814) (1993).

15

Busch v. State, 271 Ga. 591, 593-595 (523 SE2d 21) (1999).

16

Braithwaite v. State, 275 Ga. 884, 889 (9) (572 SE2d 612) (2002).

17

Pennymon v. State, 261 Ga. App. 450, 455 (6) (582 SE2d 582) (2003).

18

Pinson v. State, 266 Ga. App. 254, 258 (2) (596 SE2d 734) (2004).

19

Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995).

20

Hopper v. State, 267 Ga. App. 218, 220-221 (2) (598 SE2d 926) (2004).

21

Johnson v. State, 257 Ga. App. 30, 31 (570 SE2d 344) (2002).

22

Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993).

23

Davis v. State, 267 Ga. App. 245, 246 (2) (599 SE2d 237) (2004).

24

Sanders v. State, 236 Ga. App. 578, 579-580 (1) (a) (512 SE2d 678) (1999).

25

Carter v. State, 192 Ga. App. 726, 728 (4) (386 SE2d 389) (1989).

26

Wooten v. State, 240 Ga. App. 725, 727 (3) (a) (524 SE2d 776) (1999).

27

Eagle v. State, 264 Ga. 1, 3 (3) (440 SE2d 2) (1994).

28

Jackson v. State, 251 Ga. App. 171, 172 (1) (554 SE2d 202) (2001).

29

Paul v. State, 272 Ga. 845, 846-848 (1) (537 SE2d 58) (2000).

30

Sanders v. State, 211 Ga. App. 859, 862 (2) (440 SE2d 745) (1994).

31

Robinson v. State, 278 Ga. 31, 37 (3) (d) (597 SE2d 386) (2004).