In May 1983, while Stephen Hynes and his fiancee, Catherine Moore, were cooking on the patio of her apartment, Henry Albert Hamilton and Michael Fortson, armed with pistols, came through bushes onto the patio. After Hynes said his wallet was inside, he and Moore were ordered into the apartment. When Hynes and Moore attempted to flee, Hynes was shot twice and died. Fortson told a witness that he and Hamilton attempted to rob the victims, and that Hamilton had shot Hynes and had unintentionally shot Fortson in the leg. That witness reported them to the police. Both were identified in lineups by Moore. Hamilton was convicted of felony murder in November 1983 and his conviction was affirmed by this Court.
Hamilton v. State,
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Hamilton guilty beyond a reasonable doubt of the crimes of which he was convicted.
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Jackson v. Virginia,
2. During voir dire, trial counsel asked potential jurors whether any of them would lose a paycheck if chosen for jury service, what their general attitudes were toward the criminal justice system, which jurors had traveled to a foreign country, whether any jurors knew anyone who had been sentenced to time in prison or jail, and whether any jurors had been affected by the pretrial publicity on the O.J. Simpson case in California. On appeal, Hamilton contends that the questions were irrelevant and outside the scope of OCGA § 15-12-133, 2 and that the trial court erred in overruling the State’s objections to the questioning.
Pretermitting whether Hamilton can complain on appeal that the trial court erred in permitting defense counsel to ask the questions,
3
no error appears in the allowance of the questions. The scope of voir dire and the propriety of particular questions are left to the sound discretion of the trial court.
Hammond v. State,
3. The trial court granted a motion in limine in which the State sought to exclude evidence of a series of allegedly similar crimes committed by unknown persons. Hamilton asserts that ruling was error.
Certainly a defendant is entitled to introduce relevant and admissible testimony tending to show that another person *584 committed the crime for which the defendant is tried. [Cit.] However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.
Klinect v. State,
4. Hamilton complains on appeal of the trial court’s failure to grant a mistrial or give curative instructions following a defense objection to opening argument. Since no motion for mistrial or request for instructions was made after the trial court sustained the only objection, the trial court did not err in failing to grant a mistrial or give instructions.
Zellner v. State,
5. The State put on evidence of eight similar crimes committed by Hamilton, one at the beginning of the trial and the others after the introduction of the evidence of the crimes for which Hamilton was on trial. He compláins on appeal that the trial court erred in permitting the introduction of similar transaction evidence prior to the introduction of evidence regarding the offenses involved in the present case.
“While the court has discretion as to the order of admission of evidence [cit.], that discretion is not unlimited.”
Gilstrap v. State,
In the present case, the State put on evidence of only one similar transaction before it introduced evidence relating to the charges on which Hamilton was being tried. In four decisions after
Gilstrap,
this Court and the Court of Appeals have found no abuse of discretion in permitting introduction of a single similar transaction prior to the
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introduction of evidence of the crime for which the defendant was being tried.
Blackburn v. State,
6. Hamilton contends that the trial court’s refusal to require the State to provide a copy of a statement made by Moore violated
Brady v. Maryland,
7. In one enumeration of error, Hamilton contends the trial court erred on five occasions by denying motions for mistrial. Two of the motions were prompted by the mention of the former trial by two separate witnesses in violation of an earlier ruling by the trial court. On the first occasion, the trial court directed the prosecution to caution all witnesses and on the second occasion, the trial court offered to give curative instructions which defense counsel declined, agreeing with the trial court’s observation that instructions would call the jury’s attention to the mistake. Another motion stemmed from Moore’s emotional reaction to a photograph of the murder victim. Defense counsel alleged that the State had deliberately created the *586 emotional scene, but after the prosecuting attorney stated that she had to have testimony identifying the deceased and that she had held back the most disturbing photographs, the trial court denied the motion. Defense counsel moved for a mistrial during the testimony of a witness establishing similar transactions, contending that the witness had implied that Hamilton was involved in many more robberies than had been suggested in an earlier hearing on similar transaction evidence. After the trial court denied that motion with an observation that defense counsel had interrupted the witness before he could clarify what he was saying, defense counsel moved again for mistrial on the ground that no similar transaction evidence should have been admitted. The trial court denied that motion also.
“A trial court’s discretion in-granting or refusing to grant a mistrial should not be disturbed unless a mistrial is essential to the preservation of the right to a fair trial. [Cit.]”
Gardner v. State,
8. When the State proffered photographs taken by a bank’s automatic camera providing surveillance of an automated teller machine, Hamilton objected that the State had failed to lay a proper foundation for admission of the photographs. He enumerates as error the trial court’s overruling of that objection.
“A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. [Cit.] Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken.” [Cit.]
Scott v. State,
9. A witness testified that Fortson told him that Hamilton had shot the victim and had also accidentally shot Fortson in the leg. Hamilton complains that the testimony was hearsay and was not admissible under the necessity exception or because Hamilton did not deny the statement, but those arguments are without meaning
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since the trial court did not admit the testimony under either of those exceptions. In fact, the only two hearsay objections made during this testimony were sustained. Had further exception to the testimony been made on hearsay grounds, it would have been unavailing because the testimony was admissible under the co-conspirator exception to the hearsay rule.
Butler v. State,
10. During the cross-examination of a defense witness, Hamilton’s former employer, the prosecuting attorney asked the witness whether he would be surprised to learn that during the time period involved, Hamilton went out after work and committed robberies. Hamilton argues on appeal that his character was thereby put into issue. However, the only objection raised at trial was that there was no foundation for the question, and the trial court sustained that objection. Since there was no objection at trial on character grounds, that complaint is waived.
Coppock v. State,
11. Hamilton contends on appeal that the trial court erred in admitting evidence of similar transactions. The trial court, after conducting a hearing and making the findings required by
Williams v. State,
12. As to Hamilton’s contention that the prosecuting attorney made improper comments during closing argument, no objection was raised at trial, which waives the right to complain on appeal.
Bellamy v. State,
13. Citing ten instances of what he contends was deficient performance by trial counsel, Hamilton claims he was rendered ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Cits.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.] The trial court’s determination with respect *588 to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous. [Cit.]
Chapman v. State,
Hamilton’s first contentions, that trial counsel was ineffective by asking prospective jurors questions outside the scope of OCGA § 15-12-133 and by failing to object to the presentation of similar transaction evidence before the case-in-chief, are without merit in light of our holdings above that the questioning was within the scope of that statute and that the admission of evidence concerning one similar transaction before the evidence concerning the offense for which Hamilton was on trial was not an abuse of discretion. Hamilton next asserts that counsel was ineffective for failing to move for a mistrial on two occasions. The first was when the State produced Fortson for identification. Hamilton does not suggest on appeal any possible ground for mistrial associated with having a witness identify Hamilton’s accomplice and we have not ascertained any such ground in our review of the record and the law. The contention that trial counsel should have moved for mistrial because the prosecuting attorney left prejudicial photographs face-up on her table where the jury could see them is not supported by the record. The transcript shows that when trial counsel objected to the placement of the photographs on the table, the prosecuting attorney said she would move them, then noted for the record without contradiction that only one photograph was face-up, and that was a photograph of a hat the jury had already seen. Hamilton’s claim that counsel should have moved for a mistrial because Hamilton was not present during part of the proceedings which were conducted in the trial court’s chambers is at odds with the law and the transcript.
A defendant’s right to be present . . . may be personally waived by the defendant or by defendant’s counsel. [Cit.] For there to be a waiver by defendant’s counsel, the waiver must be made in the defendant’s presence or with his express permission, or else the waiver must be subsequently acquiesced in by the defendant. [Cit.]
Brooks v. State,
Hamilton did not testify at trial, and contends on appeal his trial counsel were ineffective in denying him the right to testify. Whether to testify in his own behalf is a decision for a defendant to make after full consultation with counsel.
Van Alstine v. State,
Two of Hamilton’s assertions of ineffectiveness of counsel concern the handling of witnesses, specifically the failure to impeach one witness by use of the witness’s purportedly inconsistent testimony at Hamilton’s first trial, and the failure to interview and call to the witness stand the person who gave alibi testimony at the first trial. The first of those assertions is fatally at odds with the record in two ways: the witness’s testimony at both trials was that Moore was uncertain at the lineup in her identification of Hamilton; and trial counsel did use the witness’s testimony from the first trial to prompt the witness to say he did not see Moore positively identify Hamilton at the lineup. With regard to their decision not to call Hamilton’s alibi witness, defense counsel testified that although they did not personally speak to the witness, she was interviewed by their investigator, who reported that the witness, who had been Hamilton’s girlfriend at the time of the crimes involved here, had since married, did not want to be involved in the trial, and would not testify as she had at the first trial. The decision not to call the witness was a strategic or tactical decision
(Roberts v. State,
Hamilton’s remaining contention that trial counsel was ineffective is not properly before this Court because it was not raised on motion for new trial, and “contentions of ineffectiveness not raised on motion for new trial by counsel appointed . . . after conviction are waived. [Cit.]”
Spear v. State,
14. As he did on his first appeal, Hamilton contends his “due-process guarantee of a fair trial was violated by the admission of highly unreliable eyewitness testimony produced by impermissibly suggestive identification procedures utilized by the state.” Hamilton v. State, supra at 469. A review of the transcript and the law persuades us that the resolution of this issue is well expressed in the words of this court’s affirmance of his first conviction:
This argument rests upon the assertion that witness Moore was shown photographic displays or arrays containing photographs of [Hamilton and Fortson] (driver’s license photos, as contrasted with mug shots of the other subjects) and was unable to identify the appellants, and that a week or ten days later, she identified the appellants (who were the only subjects whose photographs had been included in the photographic array) out of a police corporal lineup. By itself, this procedure was not impermissibly suggestive. [Cit.] Nor were the identifications unreliable under the totality of the circumstances. [Cit.] Miss Moore’s uncertainty as to the assailants’ descriptions on the night of the crime is understandable in view of her having just experienced the trauma of the murder of her fiance. Her identification at the corporal lineup was immediate and definite and, she testified, based upon her independent recollection. The lineup was only a month after the murder. There was evidence that she had had about five minutes to view both assailants at the well-lighted crime scene. Although she had been drinking, she had consumed only a half a glass of champagne. . . . Whatever conflicts [existed] in the evidence on the identity of [Hamilton] as [a perpetrator] were resolved by the jury against [Hamilton]. The evidence authorized the finding that [he and Fortson] were the perpetrators, and shows that there is no likelihood of irreparable misidentification.
Id. at 469 (1).
Judgment affirmed.
Notes
The crimes were committed on May 28, 1983. After the vacation of Hamilton’s first conviction, he was indicted on July 1, 1994, for felony murder and two counts of criminal attempt to commit armed robbery. A trial conducted on September 19-26,1994, resulted in a verdict of guilty on all counts. The trial court sentenced Hamilton to life imprisonment for felony murder, deemed one count of criminal attempt to commit armed robbery to have merged with the felony murder count, and sentenced Hamilton to a consecutive term of ten years for the other count of criminal attempt to commit armed robbery. Hamilton’s motion for new trial, filed October 21, 1994, was denied, as amended, on September 25, 2000. Following a timely notice of appeal filed on October 6, 2000, this appeal was docketed in this Court on January 10, 2001, and was orally argued on April 17, 2001.
[Clounsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.
OCGA § 15-12-133.
But see
Crozier v. State,