A jury found Darrin L. Bates guilty of entering an automobile with intent to commit theft, two counts of burglary, aggravated battery, and theft by taking. On appeal, Bates claims that (1) the evidence was insufficient to support the verdict; (2) the trial court erred in denying his motion to change venue; (3) the trial court erred in denying his motions to strike seven prospective jurors for cause; (4) the trial court erred in denying his motion to suppress the pretrial and in-court identifications by the second victim; (5) the trial court erred in overruling his hearsay objection to the introduction of a latent fingerprint card; and (6) he received ineffective assistance of trial counsel. For the reasons that follow, we find that Bates’s claims of error have no merit and affirm.
Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. See Reese v. State,
After the second victim and Bates looked at each other for between three to five seconds, Bates fled. The second victim found the first victim’s hunting knife lying on top of the washing machine. He discovered that Bates had eaten some of the food in the house. Over the course of time, the second victim also noticed that several things had been taken from his lake house, including a tooth brush, a kitchen knife, and a spoon.
The day after the second victim discovered Bates in his lake house, a man came to the back door of the third victim’s Baldwin County residence. The third victim, an elderly woman who lived alone, identified that man as Bates during her trial testimony. After the third victim cracked the door open, Bates pushed into her home and beat her severely. The trauma from the beating damaged the third victim’s optic nerve and caused her to lose the sight in her left eye. After the beating, Bates tied the third victim up and left the scene in her 1999 Chevrolet Lumina. The third victim’s son found the second victim’s kitchen knife lying on the floor of his mother’s house.
Later that month, the third victim’s Lumina was towed to police headquarters in Philadelphia, Pennsylvania after the Philadelphia police determined that Baldwin County had placed a “hold” on the car. Per Baldwin County’s request, the Philadelphia police processed the Lumina for evidence. The Philadelphia police officer who testified at Bates’s trial observed his partner lift a fingerprint off the car’s rearview mirror and then hand the testifying officer the latent impression card. An expert in fingerprint analysis took Bates’s fingerprints and later testified that the print on the card identified by the Philadelphia police officer matched the right thumb of the known print card that the expert had personally collected from Bates.
Following the trial, the jury found Bates guilty of the charged offenses of entering an automobile, two counts of burglary, aggravated battery, and theft by taking. The trial court later denied Bates’s motion for new trial, and Bates filed this appeal.
1. Bates asserts, without argument or elaboration other than his description of the evidence presented at trial, that the verdict is contrary to the evidence and without support, strongly against the weight of the evidence, and contrary to law and the principles of justice and equity, and that the trial court accordingly erred in failing to grant his motion for new trial. We disagree. When the sufficiency
2. Bates contends that the trial court erred in denying Bates’s motion for change of venue. We disagree.
Bates filed a pretrial motion for change of venue on the ground that the jury pool had been tainted by extensive pretrial publicity in local newspapers, radio, and television.
To prevail on a motion to change venue, “the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” (Citation omitted.) Eckman v. State,
Nor did Bates establish that the jury selection process showed actual prejudice. Bates shows that 20 potential jurors (of 43 questioned) had some prior knowledge of the case. However, the determinative issue was not the number of jurors who had heard about the case, but whether the jurors who had heard about the case could set aside their opinions and render a verdict based on the evidence. See Walden v. State,
3. Bates also claims that the trial court erred in failing to grant his motions to strike seven prospective jurors for cause. We disagree.
Before a potential juror can be disqualified for cause, the challenger must show that a potential juror’s opinion “is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” (Citation and punctuation omitted.) Mosely v. State,
(a) Bates contends that the trial court erred in failing to grant his motions to strike prospective jurors W. B., T. G., and T. H. for cause because they knew much about the case and because the trial court accepted the jurors’ testimony that they could be fair and impartial.
(b) Bates also contends that the trial court erred in denying his motions to strike prospective jurors R. B., D. S., D. T., and M. B. for cause because they knew much about the case, they knew the victim, and the trial court accepted the jurors’ testimony that they could be fair and impartial. Prospective juror R. B. had read about the case in the local newspaper, and he knew members of the third victim’s family with whom he had attended high school, but he explained that he had not seen them in years and could be fair to both sides in the
Notwithstanding their knowledge of some of the facts of the case and their familiarity with the victim’s family or neighbor, the trial court could conclude that these prospective jurors could be impartial and fair to both sides. Even if “a juror knows a victim[, this] does not require dismissal for cause if the juror indicates that he can be fair and impartial and decide the case on the basis of the evidence presented.” Davis v. State,
4. Following an evidentiary hearing, the trial court denied Bates’s motion to suppress the pretrial photographic lineup and the subsequent in-court identification of Bates by the second victim, finding the identification sufficient to meet the requirements of Neal v. Biggers,
Our Supreme Court has said that, because it may lead to improper tainting of a later in-court identification, it is not good practice in the course of a pretrial lineup to indicate to a witness that he or she has chosen the “right” person. Dodd v. State,
convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
(Citation and punctuation omitted.) Id. See Graham v. State,
In determining whether there was a very substantial likelihood of irreparable misidentification, factors to be considered include:
(1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation.
(Citations omitted.) McBride v. State,
The evidence shows that when the second victim arrived at his lake house with his son he realized that the door was unlocked and so he immediately pushed his son aside. He also noticed that the doorjamb had been broken loose. After he stepped inside he saw Bates standing approximately 25 feet away. The second victim and Bates stood and looked at each other, face to face, between three and five seconds before Bates turned around and ran. There was “plenty
5. Bates further argues that the trial court erred in overruling his •hearsay objection to the entry into evidence of the latent fingerprint card. Again, we disagree.
The officer who lifted the latent fingerprint from the rearview mirror window of the Lumina did not testify at trial. However, a Philadelphia police officer observed his partner take the print from the mirror. When asked to identify the latent impression card, the observing officer testified that “[t]his is the card” that his partner handed to him after lifting the fingerprint off the mirror. He explained that the latent fingerprint card was “the actual card, the actual lift that my partner lifted off the mirror.” Bates contends that the card was inadmissible hearsay because the person who took the latent
Here, the card at issue simply shows an image of part of a window with fingerprints thereon, and it did not contain any representations or conclusions of a third party,
6. Lastly, we consider Bates’s claim that he received ineffective assistance of trial counsel. If not “clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo.” (Footnotes omitted.) Tyner v. State,
(a) Bates contends that his trial counsel, having sufficient peremptory strikes to do so, was ineffective in failing to strike jurors W. B. and T. H. after counsel’s motions to strike these jurors for cause was denied. At the hearing on motion for new trial, defense counsel explained that he did not use a peremptory strike on W. B. because although she had some knowledge of the case through exposure to television and newspapers, he did not believe she had a relationship with the family of the third victim, and he wanted to “hang onto” his strikes at that point in the selection process. As to T. H., defense counsel testified that although the juror had “some exposure” to newspaper accounts of the crime, T. H. had no ties to the third victim’s family. Defense counsel could not recall why he did not strike T. H., “unless [he] was still thinking at that point that [he] needed to hold” further strikes in reserve. Given the presumption that counsel’s representation falls within the range of reasonable professional assistance, counsel’s testimony at the hearing on motion for new trial, and our review of the voir dire of W. B. and T. H., Bates has not shown that his trial counsel was deficient. “The use of peremptory strikes is a matter of trial strategy, and [Bates] has failed to carry his burden to show that counsel’s use of his strikes was not reasonable.” (Footnote omitted.) Hardnett v. State,
(b) Bates also argues that his trial counsel was ineffective in failing to put forth any mitigation evidence on his behalf. However, defense counsel testified that he did not have any mitigation evidence to present on Bates’s behalf. Defense counsel explained that there were no relatives or local community members who could offer such evidence. And Bates did not proffer any evidence in mitigation that
(c) Bates further argues that his counsel’s errors, taken together, show a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. See Schofield v. Holsey,
Judgment affirmed.
Notes
Attached to Bates’s motion, as amended, were articles captioned as “Hancock escapees at large,” “Jail Escapees Sought,” “Stolen Car ditched in Philly,” “Philly cops nab man in [third victim’s] case,” “Notable court trials nearing,” and “Escaped inmate accused of beating elderly woman.”
One article stated that Bates was wanted on rape charges in Massachusetts, and another article stated that he was wanted on sexual assault and rape charges in Connecticut. These assertions were not the focus of the articles or shown to have been known by the prospective jurors.
Although the defense did not use all of its peremptory strikes, this did not render these alleged errors necessarily harmless. See Wallace v. State,
T. H. agreed that because he had some knowledge of the case it would be “difficult” to be fair to both sides, but he denied that he would accordingly lean to one direction. Rather, according to T. H., “it would mean that I would just try to hear all the information that was gathered.” T. H. then confirmed that, setting aside anything he might have heard before, he would make a decision based strictly on the evidence. See Corza v. State,
Bates’s counsel objected to the introduction of the card on the grounds of improper bolstering, a lack of a proper chain of custody, and hearsay, but Bates’s claim of error and argument on appeal is that the fingerprint card was improper hearsay.
At the time of Bates’s trial, former OCGA § 24-3-1 (a) defined hearsay as evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” Under the new Evidence Code, effective January 1, 2013, hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c).)
There was apparently some writing on the back of the card, although it is not part of the record. According to the testifying witness, he was the one who “filled out the back of the card.” The trial court allowed the fingerprint card into evidence because he agreed with the State that the “face of the card” was admissible, but he indicated that they would “deal with the back side later.” The trial court subsequently directed that the front side of the card be photocopied, and he explained to the jury that they would not have access to the back of the card.