David Robert Norton appeals his convictions and sentences for malice murder, arson, criminal attempt to commit the crime of concealing the death of another, possession of a firearm by a first offender probationer, and possession of a firearm during the commission of a felony, all in connection with the shooting death of Amy Ayers (“Amy”).
Norton was found, taken to a law enforcement facility, given his Miranda
2. Norton contends that evidence of his interview with law enforcement investigators, and the written statement he made at the time, should have been suppressed, asserting that he was then under the influence of drugs and alcohol such that his waiver of his Miranda rights was not made knowingly and voluntarily. After a JacksonDenno
In deciding the admissibility of a statement during a JacksonDenno hearing, the trial court “must consider the totality of the circumstances” and must determine the admissibility of the statement under the “preponderance of the evidence” standard. Unless the factual and credibility findings of the trial court are “clearly erroneous,” the trial court’s decision on admissibility will be upheld on appeal. [Cits.]
Jones v. State,
During the hearing, Norton’s expert witness, a psychiatrist, testified that Norton reported that, before the interview, he had taken 15-20 pills of Xanax, two pills of Adderall, and had been drinking bourbon and beer. The expert further testified that he had viewed the recording of the interview, had conducted his own interview of Norton, and concluded that Norton had a history of substance abuse that had created in him a tolerance for the substances such that he would appear to be functioning normally, but would not in fact be able to make intelligent decisions, and that, in the expert’s opinion, at the time of the interview, Norton was not able to knowingly or intelligently waive his Miranda rights. Another expert witness, also a psychiatrist, testified on behalf of the State that she reviewed the interview and, given the statements Norton made and the answers to questions he was asked, he understood that giving a statement to investigators could have legal consequences, did not display a “significant level of impairment,” and knowingly, intelligently, and voluntarily waived his Miranda rights. The detective who was the primary interviewer testified that he did not promise Norton anything in exchange for speaking with the detective, that Norton appeared to understand both what was occurring and his Miranda rights, even discussing the fact that he could not afford an attorney,
The mere fact that Norton may have been somewhat intoxicated at the time of the interview does not automatically render evidence thereof inadmissible. Jones, supra. See also Shelby v. State,
3. Norton contends that the trial court wrongly admitted into evidence two autopsy photographs that showed the victim’s head, one with a portion of the scalp excised and one with a portion of the skull removed.
A photograph that depicts the victim after autopsy incisions or after the pathologist changes the state of the body is admissible when “necessary to show some material fact which becomes apparent only because of the autopsy.” Brown v. State,250 Ga. 862 , 867 (5) (302 SE2d 347 ) (1983).
Bunnell v. State,
4. During closing argument, the State presented a demonstration with a piece of wood 18 inches long, which represented the sawed-off shotgun that Norton told investigators he and Amy struggled over.
5. During deliberations, the jury asked to view the video recording of Norton’s statement to investigators, and to have the transcript thereof to refer to during the viewing. After discussion with counsel, the court arranged for the jury to have the recording made available to it to view in the jury room, and for copies of the transcript to be delivered there as well. Although Norton asserts that it was error to do so, the record is clear that he acquiesced in the court’s decision, and therefore cannot complain on appeal. See Holcomb v. State,
6. Norton also contends that, after deciding that the video should be viewed by the jury, with the transcript used for reference, the trial court should have given further instructions regarding the jury’s consideration of the video and transcript.
we review this contention for plain error. See State v. Kelly,290 Ga. 29 (1) (718 SE2d 232 ) (2011); OCGA § 17-8-58 (b). Under this standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and “seriously affects the fairness, integrity or public reputation” of the judicial proceedings. [Cit.]
Durham v. State,
7. Norton contends that his trial counsel failed to provide effective representation, and that his motion for new trial founded upon that ground should have been granted. In order to prevail on this claim, he must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
(a) Norton claims that counsel’s representation was ineffective because counsel had an actual conflict in his representation of Norton in light of the fact that counsel had represented Amy in a civil matter some years before she was killed.
The question of whether an attorney labors under an actual conflict of interest for purposes of the Sixth Amendment generally arises when the purported conflict stems from the attorney’s representation of multiple defendants concurrently. See Mickens v. Taylor,535 U. S. at 174-176 ; Cuyler v. Sullivan,446 U. S. 335 , 350 (100 SC 1708, 64 LE2d 333) (1980). This Court has also found a Sixth Amendment actual conflict to occur when the attorney’s duty of loyalty to his client conflicts with the attorney’s duty to the attorney’s employer. Edwards v. Lewis,283 Ga. 345 , 350 (658 SE2d 116 ) (2008). See also Sallie v. State,269 Ga. 446 (2) (499 SE2d 897 ) (1998) (actual conflict of interest arose where co-defense counsel served simultaneously as the law clerk for the judicial circuit in which his client was being tried).
White v. State,
(b) Norton also claims that counsel failed to properly investigate the case. Pretermitting whether counsel’s investigation of the case could be characterized as inadequate, Norton has “failed to show that a more thorough investigation would have yielded any significant exculpatory evidence and thus failed to establish prejudice resulting from the allegedly deficient investigation. [Cit.]” Shank v. State,
(c) Although Norton urges that counsel was ineffective for not requesting the court to enter a more complete written order on his motion to suppress, or to request a certificate of immediate review of
(d) Finally, Norton asserts that trial counsel was ineffective in failing to have jury voir dire and the opening statements and closing arguments transcribed. Again, he fails to sustain these assertions on appeal. “The arguments of counsel at trial are not required to be transcribed. OCGA § 17-8-5. Voir dire is not required to be transcribed unless the prosecution is seeking the death penalty. [Cit.]” Dunlap v. State,
Judgments affirmed.
Notes
Amy was killed on October 30,2007. On January 23,2008, a Gwinnett County grand jury indicted Norton for malice murder, felony murder while in the commission of aggravated assault, arson, aggravated assault, criminal attempt to commit the crime of concealing the death of another, possession of a firearm by a first offender probationer, and possession of a firearm during the commission of a felony. Norton was tried before a jury December 7-10,2009, and found guilty of all charges. On December 21, 2009, Norton was sentenced to life in prison for malice murder, twenty years in prison for arson, five years in prison for criminal attempt to commit the crime of concealing the death of another, five years in prison for possession of a firearm by a first offender probationer, and five years in prison for possession of a firearm during the commission of a felony; the remaining guilty verdicts were either vacated by operation of law or merged with crimes for which sentence was entered. See Malcolm v. State,
Miranda v. Arizona,
Jackson v. Denno,
Although Norton contends that the trial court’s written order did not comply with the strictures of Berry v. State,
The exact nature of the demonstration does not appear in the record; on the day of one of the hearings on the motion for new trial, the parties signed a stipulation that a demonstration occurred, but the stipulation contains only the fact that the piece of wood was 18 inches long and one-and-three-eighths inches wide. Norton has not attempted to supplement the record further.
The court instructed the jury that it was not to deliberate while viewing the recording, that the transcript would be taken by the bailiff afterward and not be available during deliberations, and that the recording was to be considered as only one portion of the overall evidence in the case. When the recording was introduced in the case in chief, the court also instructed the jury that the statements made by officers on the recording should not be considered as evidence, and that portions of the audio had been removed from the recording but that no inference should be drawn therefrom.
As to the prejudice prong of establishing ineffective assistance of counsel, “this Court has identified only three instances in which a petitioner would be authorized to rely upon a presumption to meet his burden of establishing prejudice: (1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel who labors under an actual conflict of interest that adversely affects his performance.” Walker v. Hagins,
It is also clear that Norton was aware of counsel’s prior representation of Amy, and that in the intervening years, counsel had represented Norton on three other criminal matters, including a domestic violence prosecution in which Amy was the victim; in at least that instance, counsel’s representation of Norton was at Amy’s request.