Rоbert Johnson was fatally shot in the parking lot of a Savannah nightclub in August 1998. 1 The State presented evidence that the victim had left the nightclub and gone to the parking lot at appellant Stacey Gardner’s request because Gardner wished to speak with him there. One witness testified that he saw appellant shoot Johnson. The State also presented the testimony of a man who had been shot by appellant on a previous occasion, and another man at whom appellant had pointed a gun.
1. The evidence, both circumstantial and direct, was sufficient to authorize a rational trier of fact to find appellant guilty of all the crimes for which he was convicted beyond a reasonable doubt.
Jackson v. Virginia,
2. In his first enumeration of error, appellant asserts the trial court erred in аdmitting, as evidence of a similar transaction, the testimony of the man who stated appellant pointed a gun at him and pulled the trigger. Appellant argues that the evidence should not be admitted because he was subsequently acquitted of all charges arising from that incident in a trial that took place nine months after appellant was convicted of Johnson’s murder. Appellant relies on this Court’s decision in
Salcedo v. State,
However, the doctrine of collateral estoppel only operates to preclude the relitigation of issues that have been
previously
resolved between the same parties. Collateral estoppel applies only after examining whether certain facts were resolved in the defendant’s favor at a
prior
trial.
Harmon v. State,
In another enumeration of error, appellant argues that the trial court erred in admitting the testimony because the evidence did not meet the standards for admitting similar transaction evidence outlined in
Williams v. State,
The trial court admitted the testimony for the purpose of showing modus operandi, course of conduct and bent of mind, which are proper purposes under
Williams.
Id. at n. 2. We also conclude the state met the second prong of the
Williams
criteria. The state is only
*811
required to prove the accused committed a similar transaction by a preponderance of the evidence.
Freeman v. State,
The state has met the third prong of the
Williams
criteria, sufficient similarity between the crime at issue and the similar transaction. In reviewing whether sufficient similarities exist to create a connection bеtween the independent act and the instant act such that the former tends to prove the latter, this Court must focus on the similarities between the two acts rather than the dissimilarities.
Farley v. State,
3. Appellant argues it was error for the trial court to admit evidence of an aggravated assault that he committed in 1991 as a similar transaction. A witness testified that appellant shot him after he spilled a drink on the car in which appellant was riding. Appellant pled guilty to the charge of aggravated assault.
The state met the first prong of the Williams standard. Evidence of the 1991 аggravated assault was admitted to show course of conduct, intent and bent of mind, acceptable purposes under the Williams criteria. Williams, supra, n. 2. The state also met the second prong of the Williams standard. The state introduced appellant’s guilty plea and conviction for the 1991 offense. The state also presented testimony from the victim regarding the events. Thus, we conclude that the state presented sufficient evidence to establish appellant committed the similar transaction as required by Williams. The state has also met the third Williams requirement. In both cases appellant used a handgun; attempted to inflict serious injury on the *812 victims; was acсompanied by others at the time he committed the crimes; committed the crimes in the late evening hours; committed the crimes with little or no provocation; and fled the scene after committing both crimes. We conclude these facts demonstrate a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. See Davis, supra; Griffin, supra. Thus the trial court did not err in admitting evidence of the 1991 aggravated assault.
4. Appellant argues the trial court еrred in allowing into evidence a statement made by appellant to a detective because he had invoked his right to counsel. Upon being read his Miranda rights, appellant stated that he wanted an attorney present and did not want to talk with the detective. The deteсtive then informed appellant that he was being arrested for murder. Appellant asked what type of evidence the detective had against him, to which the detective responded that he could not talk to him any further because appellant had invoked his rights. Appellant persisted in asking questions of the detective. The detective stated that a witness had given a statement implicating appellant in the crime. Appellant then agreed to speak to the detective.
Police may not interrogate any suspect who has requested an attorney, unless counsel is made available to the accused or the accused initiates further communication with the police.
Haynes v. State,
5. Appellant argues the trial court erred in not granting him a mistrial after a witness commented about appellant allegedly committing armed robbery in connection to the aggravated assault appellant allegedly committed for which appellant was acquitted
2
and after negative character evidence was admitted into evidence when the court allowed the jury to listen to an audiotape of Gardner’s interrogation by a police detective, that was supposed to have been redacted to complеtely omit reference to a prior crime appellant committed. The trial court gave curative instructions to the jury instead. A trial court’s discretion in granting or refusing to grant a mistrial should not be disturbed unless a mistrial is essential to the preserva
*813
tion of the right to a fair trial.
Sims v. State,
6. Appellant contends the trial court erred in failing to give the jury his requested charge on the principle that the testimony of an accomplice to a crime will not be sufficient, standing alone, to warrant a conviction. At trial, appellant attempted to advance the theory that a friend of appellant, Miller, who had also been charged in connection with the shooting and was present at the time the victim was shot, was the actual shooter. A requested charge must be “ ‘legal, apt and precisely adjusted to somе principle involved in the case and be authorized by the evidence.’ ”
Hill v. State,
7. Finally, appellant contends the trial cоurt erred in admitting, under the necessity exception to the hearsay rule, a videotape of a statement made by a witness who was subpoenaed to testify but never appeared in the courtroom. Appellant argues that diligent efforts were not made to find the witness in that the state only tried to locate him for one day. Appellant further contends that the statement was not relevant to a material fact or more probative on that material fact than other evidence that could have been produced. Even assuming the trial court erred in admitting the statement, we conclude that the error was harmless as the state presented witnesses who testified to the same facts as the witness who gave the
*814
videotaped statement.
Smith v. State,
Judgment affirmed.
Notes
Appellant was indicted on January 27, 1999, for malice murder, two counts of felony murder, aggravated assault, possession of a firearm by a convicted felon, two counts of possession of a firearm during the commission of a crime, and two counts of use of a firearm by a convicted felon. After a jury trial was held on September 27 thrоugh September 30, 1999, the jury found appellant guilty on all counts. Appellant was sentenced to life in prison for the malice murder charge, five years for the charge of possession of a firearm during the commission of a crime, and fifteen years for the charge of use of firearm by a convicted felon, all to be served consecutively. The felony murder and aggravated assault charges were vacated by operation of law. Appellant filed a motion for new trial on October 18, 1999, and an amended motion for new trial on July 25, 2000. The amended motion was denied on September 20, 2000. Appellant filed a notice of appeal on October 10, 2000, which was docketed to this Court on November 22, 2000, and orally argued on February 19, 2001.
The disputed testimony is as follows:
Q. Okay. Did you hear the voices say anything else besides that he was supposed to die but man I dropped the clip?
A. Well, I heard things before that what they had robbed him for.