Following the denial of her motion for new trial, as amended, Jessica Lee Brown appeals her conviction for malice murder in connection with the fatal shooting of Joshua Gallimore. She challenges the sufficiency of the evidence and the effectiveness of her trial counsel, and she further complains that the trial court deprived her of a fair trial and failed to provide her with counsel for this appeal. Finding the challenges to be unavailing, we affirm.
It is true that “an indigent has the right to appointed counsel to assist him on direct appeal and an individual desiring an appeal need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel.” Trauth v. State,
it must be made known to the trial court or some responsible state official that the defendant is indigent and cannot afford retained counsel to pursue an appeal. If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant’s indigency and may presume that his retained counsel will protect his appellate rights.
Hopkins v. Hopper,
2. Construed to support the verdict, the evidence showed the following. Brown dated Gallimore for about a year and a half, she lived with him in his trailer for most of that time, and they separated about three months before Gallimore was killed. After the separation, Brown continued to see Gallimore periodically and do things for him, and she told his father that if she could not have him, nobody would have him. On May 19, 2010, Brown loaned her car to Gallimore for him to use to handle some business that afternoon. Instead, Gallimore and his friend Charles Webb drove to see Gallimore’s new girlfriend. Brown became upset after hearing a woman in the background during a phone call with Gallimore, and Brown texted him that he had “f***ed up” and that she hated him for what he did. She called the police to report that Gallimore would not bring her car back. Gallimore and Webb finally returned to Gallimore’s trailer about 1:00 a.m. on May 20, which was the last time that Gallimore was seen alive. His last phone contact with Brown occurred at 6:11 a.m. that morning, and his last communication
Webb testified that, although it was not unusual to see Gallimore infrequently, Brown asked Webb, on May 21, to check on Gallimore because she thought something was wrong, and no one else ever expressed a similar concern to Webb about Gallimore. Brown never asked police to do any sort of welfare check on Gallimore, but, on May 25, she finally convinced Gallimore’s cousin to go with her to check on him. Another friend of Gallimore’s met them there, entered his trailer, and then screamed for Brown to call 911. Gallimore was dead, and his body was in a “moderate to marked” state of decomposition. The medical examiner concluded that Gallimore had suffered eight gunshot wounds to his head in rapid succession and had been deceased for three to ten days. Police found no evidence of any weapons, drugs, burglary, or robbery, and Brown was the only person known to have conflict with Gallimore.
Law enforcement officials interviewed Brown on three consecutive days. The first interview occurred on May 25, soon after the discovery of Gallimore’s body. At that time, the bodily decomposition was “so bad” that police did not know that Gallimore had been shot, and no one had mentioned that possibility. Indeed, police did not even know whether Gallimore had died of natural causes, an accident, or a homicide. Yet Brown asked if he had been shot. On May 26, she explained that she had done “everything” for Gallimore, felt “under-appreciated,” burned and bleached his clothes after they broke up, and felt disrespected when he took her car to see another woman. On May 27, Brown admitted that she was at Gallimore’s residence on May 20, that she was upset with him, and that things “went bad.” At trial, Brown testified that she went straight home after work on May 20 and that her brother then took her to her cousin’s house, where she stayed until late that evening when her brother gave her a ride home.
Brown argues that the circumstantial evidence was not sufficient to support her conviction for murder, and she specifically complains that no murder weapon was found, that there is no proof of motive or of malice, and that someone else could have killed Galli-more. Under former OCGA § 24-4-6,
But not every hypothesis is a reasonable one, and the evidence need not exclude every conceivable inference or hypothesis — only those that are reasonable. Whether an alternative hypothesis raised by the defendant is “reasonable” is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.
Gibson v. State,
In this case, the evidence showed that Brown wanted to prevent Gallimore from being with any other woman, that she was angry with him for using her car to see another woman, that she admitted going to Gallimore’s house where things “went bad,” that he was shot eight times, and that Brown attempted to have persons other than the police check on him. Thus, the circumstantial evidence included proof of Brown’s motive, her opportunity for the killing, her malicious
3. Many of Brown’s enumerations of error cannot be reached in this appeal. She complains that, although the indictment alleges that she shot Gallimore, she was not indicted for the offense of possession of a firearm or aggravated assault, and neither of those crimes was proved. To the extent that Brown is further arguing that the evidence is not sufficient, her argument is fully answered in Division 2, supra, with respect to malice murder, and she presents nothing for review with respect to aggravated assault or possession of a firearm because she was not convicted or sentenced for either of those offenses. See Wallin v. State,
With respect to certain other alleged errors that Brown asserts deprived her of a fair trial, including the selection of a juror who recognized Brown from working with her, the admission of hearsay testimony, and the prosecutor’s use of leading questions, these arguments also have been waived as no proper objection was raised in the trial court, and plain error review is unavailable even for the eviden-tiary matters because, as noted in footnote 2, supra, Brown was tried under the former Evidence Code. See Atkinson v. State,
The jury selection and juror misconduct issues just mentioned cannot be reached in this appeal for the additional reason
4. Brown contends that trial counsel provided constitutionally ineffective assistance in several respects. Under Strickland v. Washington,
To prove deficient performance, one must show that [her] attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.
Capps v. State,
Brown has presented her assertions of ineffective assistance to this Court in a cursory manner,
failed to present any evidence as to what further research would have revealed or how any additional information would have improved [her] position. To show prejudice on a claim that trial counsel failed to adequately investigate the case, [Brown] had to at least make a proffer as to what additional investigation would have uncovered, and not merely speculate that suchinformation exists and would have made a difference.
Lupoe v. State,
Brown claims that her trial counsel rendered ineffective assistance with regard to jury selection. She supports this claim by pointing to her testimony at the hearing on her motion for new trial that one juror, who recognized her from work but denied knowing her personally, had some disagreement with her and told others that she was guilty. This testimony was not supported by anything in the trial transcript or by any testimony of trial counsel, and “juror selection is a matter of trial tactics and strategy” Capps,
Brown also contends that her trial counsel failed to file motions or to object to various leading questions, hearsay, and illegal evidence. Brown does not, however, identify any specific motion that should have been filed. In any event, reasonable decisions as to whether to make a specific objection or motion are “ordinarily matters of trial strategy and provide no ground for reversal.” Ballard v. State,
Judgment affirmed.
Notes
The murder occurred on May 20, 2010. On July 12, 2010, a Bleckley County grand jury returned an indictment against Brown charging her only with malice murder. She was tried before a jury March 20-23, 2012, and found guilty of the charge. On March 23, 2012, Brown was sentenced to life in prison. Trial counsel filed a motion for new trial on Brown’s behalf on March 30, 2012, and the motion was amended by new counsel on April 20, 2012 and again on April 14, 2014. The motion for new trial, as amended, was denied on February 24, 2016. A pro se notice of appeal was filed on March 4, 2016, and the case was docketed in this Court for the April 2017 term. The appeal was submitted for decision on the briefs. Many of Brown’s enumerations “overlap with each other and will be grouped together accordingly.” Atkinson v. State,
This case was tried under the former Evidence Code. Former OCGA § 24-4-6 appears in the new Evidence Code as OCGA § 24-14-6.
We further note that the trial court was present at the time of the alleged misconduct, heard no such comment by any juror and, as it was authorized to do, denied Brown’s oral request to set aside the verdict.
The untimely filing of Brown’s initial brief does not require dismissal of this appeal, as this Court had not issued an order setting a date by which the tardy brief must be filed. See Heard v. State,
Assuming that this Court is authorized to entertain a motion to supplement the enumeration of errors, Brown has made no such motion. Cf. Pittman v. State,
Even assuming that Brown has properly asserted a challenge under Batson v. Kentucky,
Once defense counsel made the motion for mistrial, the trial court reinstructed all potential witnesses not to discuss the case with each other or with anyone else, and it examined the witness who made the statements and every other potential witness who had not been excused. When it denied the motion for mistrial, the trial court found that the statements did not involve the facts of the case or specific testimony and that all of the potential witnesses indicated that the statements would not have any effect on their testimony. Based on Brown’s citation of Rogers v. State,
Two of those assertions were not preserved for appellate revie w: that trial counsel failed to ensure that the jury was informed of the option to find Brown guilty of a lesser included offense ; and that trial counsel abandoned her case during the post-conviction phase. Brown did not raise these claims in her amended motion for new trial, filed after she obtained new counsel, nor did she raise them at the hearing on that motion or obtain rulings on them from the trial court. See Prince v. State,