MILLER v. THE STATE
S14A0597
Supreme Court of Georgia
October 6, 2014
764 SE2d 135 | 295 Ga. 769
BENHAM, Justice.
Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman, Assistant General Counsel State Bar, for State Bar of Georgia. Giacoma, Schleicher, Roberts & Daughdrill, Gene Chapman, for Vincent.
Appellant Gregory Dwayne Miller appeals his convictions for the murder of Melissa Rushing and the concealment of her death.1 Construed in the light most favorable to the verdict, the evidence shows the victim was living at appellant‘s apartment in Macon at the time she was killed. On the evening of August 6, 2008, appellant, along with the victim and one of appellant‘s friends, Joseph Meredith, went to Wal-Mart. As they were loading groceries in the car to return home, appellant reacted angrily to the way the victim was loading the car and knocked a pizza out of the way. After they returned to appellant‘s apartment, the victim invited a man she had previously dated to the apartment for the purpose of meeting appellant so appellant could talk to him about procuring drugs, but that man testified he was unable to do what appellant was asking him to do. He spoke to the victim by phone around 11:00 p.m. as he was leaving the apartment complex, and she seemed to be fine at that time.
Later in the evening, appellant was at the apartment with the victim, Meredith, Jermaine Williams, and Alphonso English. Appellant began arguing with the victim about the man she had invited over. He got into a physical scuffle with the victim, hit her with his hand, and hit her in the head with a plate so hard that the plate broke. When the victim fell onto the couch upon being hit with the plate, appellant told her to be quiet or he would “whoop her ass.” When English tried to get appellant to stop hitting the victim, appellant
Appellant forced Meredith to obtain bleach and pour it over appellant‘s hands, and appellant took a shower. Appellant then wrapped the victim up in a shower curtain and called his friend Tommy Zellner, who came over. Appellant told Williams, Meredith, and Zellner “what he had done,” that “he had to get rid of her,” and threatened them and their families if they did not help him dispose of the body. Williams helped appellant move the body downstairs and into the back seat of Zellner‘s car. Appellant sent Meredith off to fill appellant‘s car, along with a plastic jug, with gasoline, and the two cars were to meet up. After getting the gasoline, Meredith started driving away from the station but had to pull over and walk because the car broke down. Appellant obtained the jug of gasoline, himself. Using Zellner‘s car, Williams, Zellner, and appellant drove the body to a secluded location in Bibb County, pulled the body from the car, and then appellant poured gasoline over it and set it on fire. All three men then drove to Atlanta, and appellant did not return to Macon until the next day.
In response to a 911 call reporting a fire on the side of the road, the victim‘s body was discovered while it was still engulfed in flames. The authorities testified a cord had been wrapped around the victim‘s neck which then ran down her back to her feet, which were also bound together. Forensic evidence showed there were remnants of melted plastic on the body‘s head and neck held by what appeared to be an extension cord. Investigators observed blunt force trauma to the face that was inconsistent with damage due to the fire. They determined the body had been doused with a flammable liquid. Appellant‘s sister heard news on the television that a body with tattoos similar to the victim‘s had been found beside a road, and this prompted the sister to visit appellant‘s apartment. There she observed he had been cleaning and noticed the strong smell of bleach. She also noticed a piece of carpet had been cut out of the office floor, and when his sister questioned him, appellant told her he had spilled some ink on the carpet.
1. Appellant asserts that, but for his statement to the police, the evidence was vague, ambiguous, and conflicting, at best, and that the only two other major witnesses, Meredith and Williams, admitted to at least participating in the concealing of a death, perjury in sworn statements to police, and obstruction of law enforcement. Consequently, appellant contends the evidence was insufficient to support a conviction pursuant to the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Resolving evidentiary conflicts and inconsistencies, however, as well as assessing witness credibility, are the province of the factfinder, not this Court. Hampton v. State, 272 Ga. 284, 285 (1) (527 SE2d 872) (2000). Further, when reviewing the sufficiency of the evidence, this Court considers the evidence in the light most favorable to the verdict. See Barge v. State, 294 Ga. 567, 568 (1) (755 SE2d 166) (2014).
The trial court instructed the jury that the testimony of an accomplice, alone, is not sufficient to warrant a conviction, and also that whether a witness in the case was an accomplice is an issue for jury determination. From the evidence, the jury was entitled to find these witnesses were not accomplices in the concealment of the victim‘s death or any other criminal acts but were coerced by fear of harm or death to do appellant‘s bidding with respect to disposing of the body. See Kelly v. State, 270 Ga. 523, 525 (2) (511 SE2d 169) (1999). Consequently, this is not a case in which the evidence of that crime consisted solely of the uncorroborated testimony of accomplices and was therefor insufficient to convict. Id. In any event, accomplices can corroborate each other. See Jones v. State, 235 Ga. 103 (3) (218 SE2d 899) (1975); Skipper v. State, 314 Ga. App. 870, 872 (726 SE2d 127) (2012). Pursuant to the standard set forth in Jackson v. Virginia, supra, the evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.
(a) (i) With respect to trial preparation and the calling of witnesses, appellant complains that his trial counsel failed to use any of the witnesses he identified to counsel, that counsel rarely met with him, and would not listen to his concerns about his defense. At the motion for new trial hearing, however, appellant‘s trial counsel testified that he met with appellant a number of times, provided appellant with information gathered during discovery, and that he investigated witnesses identified by appellant but concluded none of them would be helpful to the case and one would have been harmful to call. “A strong presumption exists that counsel‘s conduct falls within the broad range of professional conduct.... [T]he trial court was entitled to believe counsel‘s testimony he consulted with his client over appellant‘s testimony that he did not[.]” Coggins v. State, 275 Ga. 479, 481-482 (3) (569 SE2d 505) (2002).
Further, appellant presented no evidence whatsoever regarding the identity of the witnesses he claims should have been called or what their testimony would have been. Deciding which witnesses to call is a matter of trial strategy and tactics, and because appellant failed to show that the strategic decisions made by his counsel with respect to witnesses were so patently unreasonable that no competent attorney would have chosen them, the trial court did not err in finding trial counsel‘s performance in this regard was not constitutionally deficient. See Washington v. State, 294 Ga. 560, 565-566 (3) (755 SE2d 160) (2014).
(ii) One of appellant‘s complaints regarding counsel‘s failure to call witnesses relates to his assertion that counsel wrongly failed to present the testimony of a DNA expert. Appellant, however, has failed to demonstrate how trial counsel‘s failure to present the testimony of a DNA expert created prejudice pursuant to the two-pronged test set forth in Strickland because the State‘s witnesses established the absence of the victim‘s blood at appellant‘s apartment. Counsel is not ineffective for failing to call an expert witness whose testimony would
(b) Appellant also asserts his counsel provided ineffective assistance when he failed to withdraw from representing him, so that new counsel could be appointed, when an ethical conflict of interest arose which caused counsel to present appellant‘s testimony in a narrative format as opposed to questioning him. When appellant elected to take the stand, trial counsel informed the court outside the presence of the jury that an ethical issue prevented him from questioning appellant. An ex parte hearing was conducted, and when asked, trial counsel disclosed that the ethical issue was the potential violation of
Appellant now asserts that when the trial court permitted him to testify in the narrative, this effectively permitted his trial counsel to withdraw from representing him, leaving him without counsel, thus establishing constitutionally ineffective assistance of counsel. He further asserts that pursuant to
Appellant argues that immediate withdrawal was the only appropriate action for trial counsel so that a mistrial could be granted and new counsel appointed to represent him at a new trial.
Because counsel is precluded from assisting the client in presenting false evidence, ineffective assistance of counsel is not shown by trial counsel‘s taking steps to avoid violating this ethical duty. See Nix v. Whiteside, 475 U. S. 157, 168-171 (II) (C) (106 SCt 988, 89 LE2d 123) (1986). Although other options for avoiding violating this duty exist, courts that have examined the issue have overwhelmingly endorsed the option of permitting a criminal defendant to testify in the narrative, after counsel has attempted to dissuade the defendant from perjury. See Foster v. Smith, 2014 WL 1230551 *14 (W.D. Mich.) (March 25, 2014) and cases cited therein.
The only clearly established Supreme Court law in this area is established by Nix: defense counsel does not act ineffectively for refusing to present known or suspected perjury by the client. Beyond that, the Court has not prescribed clear guidelines.
Id. at *15. Trial counsel testified at the motion for new trial hearing that he believed the only way to resolve the conflict that arose between his duty to the client and his duty to the court was to permit appellant to testify in the narrative because he did not think that asking to withdraw as counsel was an option at that point in the trial. Appellant has not established that the trial court would have permitted counsel to withdraw mid-trial and then granted a mistrial so that he could be represented by newly appointed counsel at a new trial. In fact, appellant submitted his pro se written request for appointment of new counsel directly to the trial judge, who denied that motion. We agree with the conclusion of the trial court in its order denying a new trial that even assuming a motion for mistrial would have been granted and new trial counsel appointed, such an approach would likely have begun an endless cycle of continuances and motions to withdraw by newly appointed counsel, or else may have encouraged appellant to keep his intent to commit perjury to himself, thus facilitating false testimony at trial. See People v. Johnson, 62 Cal. App. 4th 608, 623 (3) (72 Cal. Rptr. 2d 805) (1998).
3. (a) Both Williams and Meredith referred in their testimony to appellant‘s incarceration in the context of explaining why they initially failed to make truthful statements to investigators, stating that they felt safer speaking to the authorities once they knew appellant was in jail. Even though no objection was raised to this testimony, appellant asserts this testimony improperly placed his character into evidence and the trial court erred by failing to act sua sponte to give curative instructions. In support of his assertion that curative instructions were required, appellant cites to cases in which this Court has found no error in the trial court‘s failure to grant a motion for mistrial where the trial court otherwise gave curative instructions. See Culler v. State, 277 Ga. 717 (3) (594 SE2d 631) (2004); Carruthers v. State, 272 Ga. 306 (8) (528 SE2d 217) (2000), rev‘d on other grounds, Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008). In those cases, however, the court‘s remedial instructions were given in response to an objection raised by the defendant. When no objection to testimony is raised at trial, the issue is waived, and the error, if any, is not preserved for appeal. See Martin v. State, 281 Ga. 778, 779-780 (2) (642 SE2d 837) (2007).
(b) In the course of describing the events of the night in question and the appellant‘s words and actions, Williams testified about how appellant revealed to him and Meredith what had happened and what he demanded they do to assist him. Williams stated that appellant declared “this wasn‘t his first . . . .” Before he could finish the sentence, appellant‘s counsel objected. Pursuant to a discussion outside the presence of the jury, appellant‘s counsel moved for mistrial, which was denied. Instead, the trial court instructed the jury to disregard the witness‘s last sentence, which was incomplete, and instructed them not to speculate as to what the witness was about to say or what he meant. Appellant‘s renewed motion for mistrial was denied. We reject appellant‘s assertion that the trial court erred by denying his motion for mistrial as a result of this testimony because the testimony improperly referenced prior bad acts by the appellant and thus improperly placed his character into evidence. We agree with the trial court‘s conclusion that even if the jury assumed the witness was about to testify that appellant said “this was not his first rodeo,” the jury had no way to know what was intended by such a statement as they had no knowledge of the appellant‘s prior criminal record.
“Whether to grant a mistrial based on improper character evidence is within the discretion of the trial court. [Cit.] We have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant‘s prior convictions or criminal acts.” Bunnell v. State, 292 Ga. 253, 257 (4) (735 SE2d 281) (2013). In this case, the incomplete sentence uttered by the witness was not in response to an improper question about prior acts. Further, the witness did not actually testify to any prior criminal acts by the
4. Whether the trial court erred in denying appellant‘s motion to exclude his custodial statement to police on the ground that it was not voluntarily made under the totality of the circumstances is moot since the statement was never entered into evidence. Accord Lawler v. State, 276 Ga. 229, 233 (4) (d) (576 SE2d 841) (2003) (holding the argument that the police improperly seized legally privileged documents was moot when no such documents were admitted at trial). The record reflects that appellant even withdrew his request to charge on the voluntariness of the custodial statement, acknowledging the charge was unnecessary since counsel did not recall the State asking about that statement.
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 6, 2014.
Jonathan P. Waters, for appellant.
K. David Cooke, Jr., District Attorney, Sandra G. Matson, Myra H. Tisdale, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.