Aftеr a jury trial, Kenneth Cotton was found guilty of felony murder while in the commission of aggravated assault on Brandon Watkins. The trial court entered a judgment of conviction on the guilty verdict, and imposed a sentence of life imprisonment. Thereafter, the trial court denied a motion for new trial, and Cotton appeals. 1
1. Cotton initiated a confrоntation, claiming that he heard that Watkins had accused him of using drugs. The apparent source of this information was Cotton’s former girlfriend, whom the victim also once dated. Wаtkins admitted making the accusation, and asked Cotton what he intended to do about it. Cotton responded by drawing a gun. The unarmed victim reacted by cursing and threatening Cotton, but thеn he walked away. Cotton followed, and Watkins struck him with his fist. Cotton fired three shots, fatally wounding the victim. At trial, Cotton relied on a justification defense.
When construed most strongly in support of the guilty verdict, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Cotton’s guilt of felony murder.
Jackson v. Virginia,
2. Over Cotton’s objection, the trial court permitted the State to show that he committed a “similar crime” when, on a previous and unrelated occasion, he shot his cousin after an argument involving a girl. Cotton urges that this was error, because the two shootings were not sufficiently similar and, even if they were, the prejudice arising from admission of the evidence outweighed its relevancy.
There was no dispute that Cotton shot Watkins, and the evidence that he also shot his cousin was admitted for the limited purpose of showing his course of conduct and intent. “When similar transaction
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evidence is admitted for these purposes, a lesser degree of similarity is required than when such evidence is introduсed to prove identity. [Cits.]”
Smith v. State,
The trial court gave the jury extensive instructions regarding the limited relеvancy of the “similar crimes” evidence, both when that evidence was admitted and then in the final charge. Cotton contends that these instructions were erroneous, because “course of conduct” and “intent” are legal terms which the trial court did not define for the jurors. However, he did not submit a written request for any additional charge in connection with the jury’s consideration of the prior assault. “[Hjaving failed to request a limiting instruction, defendant cannot assert that the trial court erred because it did not give such an instruction.”
State v. Belt,
3. In response to the jury’s request, the trial court gave an oral recharge on felony murder, voluntary manslaughter, and self-defense. Thereafter, the jurors indicated that they still were unclear about the elements of the two forms of homicide. In response to this expression of the jury’s continuing confusion, the trial court submitted written instructions on felony murder and voluntary manslaughter. In doing so, the trial court did not err, since “ ‘ “it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but alsо be handed over to the jury... .” [Cit.]’ ”
Anderson v. State,
Cotton urges that, since the jury did not express any confusion about the elements of aggravated assault, the trial court erred by *360 including a definition of that offensе in the written recharge. However, aggravated assault was the predicate felony in the murder count. Accordingly, it was necessary for the trial court to define that сrime in responding to the jurors’ request for further explanation as to the elements of felony murder.
Cotton also contends that the trial court erred by failing to include in the written recharge any instructions as to self-defense. However, the jury had already received a recharge on justification, and it did not indicate any continuing doubt in that connection. Under these circumstances, the trial court did not err by failing to address self-defense in the written recharge.
See Jordan v. State,
4. During voir dire of the prospective jurors, Kal Oravet, who was employed as a high school administrator, stated that, some years in the past, he dealt with Cotton in connection with unspecified “discipline problems.” Contending thаt this statement was prejudicial, Cotton moved for a mistrial. The trial court excused Mr. Oravet, but Cotton enumerates as error the trial court’s failure to grant the motion for mistriаl.
Amotion for mistrial is not the “proper procedural tool” when an allegedly prejudicial comment is made during voir dire of prospective jurors.
Sharpe v. State,
the transcript shows, at most, that [Mr. Oravet] was the only prospective juror who might harbor... рrejudice, and he was excused properly for cause. [Cit.] Indeed, the trial court took the additional corrective action of inquiring whether anything said [by Mr. Oravet] during voir dirе would prevent the jurors from being fair and impartial, and no prospective juror gave any affirmative response. [Cits.]
Sharpe v. State, supra. Accordingly, the trial court did not err in failing to sеat a new panel of prospective jurors.
5. Cotton contends that his trial counsel was ineffective for failing to file a demurrer to the indictment. The original motion for
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new trial was filed by the trial lawyer himself, who could not be expected to question his own effectiveness. However, the record also indicates that, even though new appellate counsel eventually was appointed to represent Cotton, the motion for new trial was never amended to raise the ineffectiveness issuе. This constitutes a failure to assert the matter at the earliest practicable opportunity and, thus, is a waiver of the right to pursue it on appeal.
Bailey v. State,
The record does contain Cotton’s pro se motion for new trial, in which he contended that the failure to file a demurrer challenging the form of the indictment was an instance of trial counsel’s ineffectiveness. Since he was represented by new appellate counsel at the time he filed this pro se motion, however, it was unauthorized and without effect. See
Seagraves v. State,
Judgment affirmed.
Notes
The murder was committed on January 3, 2003, and the grand jury indicted Cotton on March 28, 2003. The jury returned the guilty verdict on November 11, 2003, and the trial court entеred the judgment of conviction and imposed the life sentence the following day. The motion for new trial was filed on December 2, 2003, and was denied on October 19, 2004. Cotton filed a notice of appeal on November 16,2004, and the case was docketed in this Court on December 3, 2004. The appeal was submitted for decision on January 24, 2005.