Appellant Lonnie Ragan was convicted of murder and related offenses in connection with the murder of Holly Hearn. Appellant now appeals his convictions, arguing that the trial court committed reversible error by failing to grant his motion for mistrial and by admitting in-life photographs of the victim adduced by the State. Finding no reversible error, we affirm.
Viewed in a light most favorable to the jury’s verdicts, the evidence adduced at trial established as follows. Appellant, a convicted felon, went looking for his estranged wife and son. Initially, he encountered Bradley Acker at a local gas station; Appellant, who was familiar with Acker, threatened Acker with a shotgun in an attempt to elicit information on the whereabouts of his estranged family. Almost immediately thereafter, Appellant, still armed with a shotgun, went to the home of Ryan and Holly Hearn, still searching for his wife and child. Appellant encountered Holly in the front yard and pointed the shotgun at her; responding to Holly’s screams, Ryan confronted Appellant, and Holly ran into the residence. Appellant forced Ryan to the ground, and Ryan’s four-year-old son, Wesson, attempted to protect his father. Appellant, still looking for his son, instructed Ryan to kick in the side door of the residence, but Ryan was unsuccessful. Holly subsequently came out of the residence armed with a revolver. Appellant fired his weapon twice,
1. Though Appellant has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Jackson v. Virginia,
2. At trial, the defense presented a single witness, Dr. Catherine Boyer, a clinical and forensic psychologist, who testified regarding Appellant’s preexisting mental health problems and how his mental health could have influenced his perception of the events at the time of the murder. Though she did not testify that Appellant was insane or incompetent, she did testify that Appellant experiences high anxiety, panic attacks, depression, racing thoughts, and “a chronic sense of being victimized, of expecting harm in situations where that might not objectively be present.” Dr. Boyer opined that these symptoms — in combination with his post-traumatic stress disorder and poor emotional control — impair Appellant’s ability to sense whether he was in a safe environment, inflate his sense of danger during conflict, and cause Appellant to perceive his surroundings to be more threatening than they are in reality. During cross-examination, while the State was going through Dr. Boyer’s report regarding Appellant’s conduct after the shooting, the following exchange occurred:
Q. Mr. Ragan was able to contact 911, your words?
A. Yes.
Q. And engage in coherent communication about what had transpired, your words?
A. Yes.
Q. Dispose of his weapon, your words?
A. Yes.
Q. And take steps towards turning himself in, is that correct?
A. Yes.
Q. Additionally, he reportedly requested an attorney before making any statements?
Following the State’s last question, Appellant moved for a mistrial outside the presence of the jury, arguing that the State had commented on his post-arrest invocation of counsel and right to remain silent. The trial court found that the unanswered question, standing alone, did not draw the jury’s attention to the question; the trial court also instructed the jury to disregard the State’s question. On appeal, Appellant maintains that he was entitled to a mistrial. We disagree.
“In Doyle v. Ohio, [
“The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the
Contrary to Appellant’s assertions, it is not clear that the jury would have inferred from the question itself that Appellant did, in fact, request an attorney. The prosecutor’s question, though highly improper, suggested only that Appellant may have, or “reportedly,” requested an attorney, and there was no response from Dr. Boyer. To the extent that the jury could have inferred that Appellant had requested an attorney, we cannot say that such an inference was particularly prejudicial or, as Appellant asserts, detrimental to his defense. See Cape v. State,
Our conclusion that this error is harmless is bolstered by the overwhelming evidence of Appellant’s guilt, the curative instruction provided by the trial court, and the fact that Appellant’s “reported” request for an attorney was never again mentioned. The trial court exercised sound discretion here, and Appellant is not entitled to relief.
3. Appellant next argues that the trial court erred in admitting five photographs of the victim while in life and erred in denying his subsequent motion for mistrial after, he says, the photographs elicited an emotional response from the jury. We address each argument in turn.
Because Appellant was tried after January 1, 2013, we utilize Georgia’s new Evidence Code to evaluate the admissibility of the photographs. Pursuant to OCGA § 24-4-402, “[a] 11 relevant evidence shall be admissible[.]” To evaluate relevancy, this Court relies on OCGA § 24-4-401, which defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, relevant evidence may be excluded under OCGA § 24-4-403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id. See also State v. Jones,
As part of its case for murder, the State was required to prove that Appellant caused “the death of another human being,” OCGA § 16-5-1, and we have previously held—under our old rules of evidence — that a photograph of a victim in life may be relevant “to prove an element of the corpus delicti, that is, that the person alleged to have been killed is actually dead.” (Citation and punctuation omitted.) Sizemore v. State,
Nevertheless, any error here is harmless because we cannot say that there is a reasonable likelihood that the defendant’s substantial rights were affected by the wrongful admission of these photographs such that reversal would be warranted. See United States v. Sellers, 906 F2d 597, 601 (II) (A) (11th Cir. 1990) (“Even where an abuse of discretion is shown, non-constitutional evidentiary errors are not grounds for reversal absent a reasonable likelihood that the defendant’s substantial rights were affected.”). As discussed above, the evidence of Appellant’s guilt was strong, and the jury was well aware — independent of the photographs — that Holly Hearn was both a wife and a mother. See United States v. Grandison, 780 F2d 425, 429-430 (4th Cir. 1985), vacated on other grounds,
Finally, Appellant contends that he was entitled to a mistrial after the photographs caused members of the audience to cry and elicited an “emotional display” from the jury. We disagree.
As an initial matter, Appellant’s motion for a mistrial was untimely. “A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion.” Harmon v. State,
Further, “[a] trial court has broad discretion in deciding whether to grant a mistrial, and the grant of a mistrial is required only if ‘it is apparent that a mistrial is essential to the preservation of the right to a fair trial.’ ” (Citations omitted.) Kirkland v. State,
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
Notes
In May 2012, a Muscogee County grand jury returned a fourteen-count indictment charging Appellant Lonnie Ragan as follows: malice murder; felony murder; aggravated assault (Holly Hearn); possession of a firearm during the commission of a felony (murder); aggravated assault (Ryan Hearn); aggravated assault (Wesson Hearn); aggravated assault (Bradley Acker); criminal attempt to commit a felony (kidnapping); possession of a firearm during the commission of a felony (criminal attempt—kidnapping); possession of a firearm by a convicted felon; unlawful handling of explosive devices (three counts); and possession of an explosive device by a convicted felon. Following a trial in March 2014, a jury found Appellant guilty of murder, felony murder, aggravated assault against Holly Hearn, Ryan Hearn, and Wesson Hearn, possession of a firearm during the commission of a felony (murder), and possession of a firearm by a convicted felon; Appellant was acquitted on the remaining charges. The trial court sentenced Appellant to life imprisonment without the possibility of parole for malice murder; the trial court also sentenced Appellant to twenty years for aggravated assault (Ryan Hearn), twenty years for aggravated assault (Wesson Hearn), five years for possession of a firearm during the commission of a felony (murder), and five years for possession of a firearm by a convicted felon, for a total of fifty years that were to be served consecutively. The remaining counts were either vacated by operation of law or properly merged. Appellant filed a motion for new trial in April 2014, which was amended in October 2015. The trial court conducted a hearing on the motion and, in December 2015, denied the motion. Ragan filed his notice of appeal on December 22,2015; this appeal was docketed to the April 2016 term of this Court and was thereafter submitted for decisions on the briefs.