Roger James Reed was indicted for the malice murder of Willie Lee Gatson, an alternative count of felony murder during the commission of aggravated assault, and the aggravated assault and aggravated battery of Gatson’s sister Nettie Porter. After a jury trial, Reed was acquitted of malice murder and found guilty of the remaining counts. The trial court entered judgments of conviction on the guilty verdicts, sentenced Reed as a recidivist under OCGA § 17-10-7 (c) to life imprisonment without the possibility of parole for felony murder, and also imposed a concurrent 20-year term for aggravated assault and a consecutive 20-year term for the aggravated battery. A motion for new trial was denied, but the trial court vacated the sentence for aggravated assault pursuant to a concession by the State. Reed appeals, understandably raising no error regarding the vacated sentence. See
Hill v. State,
1. Construed most strongly in support of the verdicts, the evidence shows that Reed began arguing with Gatson during a party at
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the victims’ residence and began fighting with him afterwards. When Ms. Porter intervened in a second attempt to make Reed leave, she grabbed a hatchet to scare him away. Reed took the hatchet from her and struck the victims repeatedly on the head and face, fatally injuring Gatson and severely injuring and disfiguring Ms. Porter. Reed fled and, two blocks away, asked a police officer if he was there because of those “ ‘people getting beat up.’ ” Reed also lied to the officer when he identified his residence and when he stated that his brother was known by the nickname that Ms. Porter had used to identify her attacker. Subsequently, Reed, who was very excited and upset, told his brother that he had messed up and hit somebody with something. When Gatson’s nephew later saw Reed with scratches on his neck and blood on his shirt and hair, Reed yelled and denied the crimes. The next day, Reed again saw Gatson’s nephew, stated that he was just defending himself, and started to run when the police arrived. Ms. Porter identified Reed as the assailant both before and during trial. This evidence was sufficient to enable a rational trier of fact to find Reed guilty beyond a reasonable doubt of the felony murder of Gatson and the aggravated battery of Ms. Porter.
Jackson v. Virginia,
2. Reed contends that the felony murder count of the indictment failed to allege the essential elements of the predicate offense of aggravated assault and that it therefore is fatally deficient or insufficient as a matter of law and is void. This contention
“is, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. [Reed’s] failure to file [a] special demurrer seeking additional information before pleading not guilty to the indictment constitutes a waiver of his right to be tried on a perfect indictment. (Cits.)” [Cit.]
Edmond v. State,
Moreover, the allegations as to the predicate offense of aggravated assault were sufficient. Reed argues that although the felony murder count alleged the use of a hatchet, that tool is not per se a deadly weapon, and the indictment did not allege that it was being used as such. However, that count alleged that Reed “did, while in the commission of a felony, to wit: Aggravated Assault, cause the death of... Gatson, a human being, when said accused struck the victim on the head with a hatchet...” In charging aggravated assault with a deadly weapon under OCGA § 16-5-21 (a) (2), it is sufficient for the indictment implicitly to allege the use of a deadly weapon or an object
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which is likely to cause serious bodily injury when used offensively.
Morgan v. State,
3. Reed further contends that the trial court erred in admitting evidence of a similar transaction from 2000 showing that Reed, who was breaking up with his girlfriend, got into an argument with her, picked up a stick from a yard, and hit her with it, injuring her lips and face. Under
Williams v. State,
“the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.” [Cits.]
Harvey v. State,
Because the parties state the standard of appellate review in unclear or conflicting ways, we first examine what standard of review is applicable to the trial court’s admission of similar transaction evidence. In this regard, the standard of review has not been stated consistently by either this Court or the Court of Appeals. See
Avila v. State,
Such precedent is inconsistent because the “abuse of discretion” standard is not identical to the “clearly erroneous” standard. In Georgia, it is well-settled that the “clearly erroneous” standard for reviewing findings of fact is equivalent to the highly deferential “any evidence” test.
Patel v. Patel,
Furthermore, “[s]ometimes the appellate courts find it necessary to use more than one standard of review to evaluate a single trial-court ruling. [Cit.]” McFadden, supra. Thus, in various contexts, we accept factual findings unless they are clearly erroneous and review a trial court’s ultimate decision on the particular issue for abuse of discretion.
Smith v. State,
When reviewing the trial court’s factual findings regarding whether the state satisfied the three-prong test [mandated by Williams], we apply the “clearly erroneous” standard. [Cit.] The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion. [Cit.]
Wright v. State,
This use of two standards of review for the admission of similar transaction evidence is hereby approved for several reasons. “We review a trial court’s evidentiary rulings under an abuse of discretion standard of review. [Cits.]”
Smith v. State,
Reed argues that there were several dissimilarities between this case and the prior offense. On appellate review, however,
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Moore v. State,
*14 this Court must focus on the similarities between the two acts rather than the dissimilarities. [Cit.] While there must be proof of a sufficient similarity between the independent offense and the instant crime charged, the two crimes need not be carbon copies of one another to be admissible. [Cits.]
*15 4. Reed also urges that his trial counsel rendered ineffective assistance in two respects.
“To prevail on this claim, [Reed] must show that (his) attorney’s performance was deficient and that, but for that deficient representation, there is a reasonable probability that the proceeding would have ended differently. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). . .. We must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but we apply the appropriate legal principles to the facts independently. (Cit.)” [Cit.]
Lizana v. State,
(a) Reed claims that trial counsel was ineffective in failing to raise in an appropriate manner the issue of the sufficiency of the indictment as discussed in Division 2 above. Our holding in that division shows that “trial counsel was not ineffective in failing to challenge the indictment, as the felony murder count ‘would not have been subject to a demurrer, even if [Reed’s] attorney had filed one. (Cits.)’ [Cit.]”
Lizana v. State,
supra at 187 (2). See also
Silvers v. State,
(b) Reed further claims that his counsel at trial was ineffective in failing to object and to move for mistrial in response to improper closing arguments by the State regarding his future dangerousness, implying guilt by association, and using the similar transaction evidence to argue Reed’s asserted propensity for violence and the insufficiency of his prior probated sentence.
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The failure of defense counsel at least to object to an argument of future dangerousness may be found to constitute deficient performance.
Jones v. State,
[A]ny such found deficiency will not amount to ineffective assistance of counsel unless the defendant can also establish that the failure to object was so prejudicial to his defense that, but for this deficiency, there was a reasonable probability that the outcome of his trial would have been different. [Cit.] In examining an ineffectiveness claim, this Court does not need to address both components of the Strickland inquiry if the defendant makes an insufficient showing on one; specifically, this Court need not determine whether counsel’s performance was deficient prior to its examination of the question of whether the defendant suffered prejudice as a result of the alleged deficiency. [Cit.]
Jones v. State,
supra,
This is not a situation of a constructive denial of counsel, so [Reed] must demonstrate actual prejudice. [Cit.] Citing Collier v. State,266 Ga. App. 345 , 354 (2) (b) (596 SE2d 795 ) (2004), [Reed primarily] argues that the outcome of his trial would have been different, not because the jury would have reached different verdicts, but because the case would never have been submitted to the jury if his attorney had moved for a mistrial. However, [Reed] cannot show that a mistrial was required. Whether to grant a mistrial for improper argument is a matter largely within the trial court’s discretion. [Cit.] The trial court has other options, including the rebuke of counsel and providing curative instructions. See OCGA § 17-8-75.
Lloyd v. State,
supra. We conclude that the remarks of which Reed complains, unlike those in
Collier v. State,
supra at 355 (2) (b), were not so “pronounced and persistent” and did not so “lace[ ] the state’s closing argument with an impermissible theme” or “so permeate [ ]
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and poison [ ] the state’s closing argument that no curative instruction from the court could have removed the damaging impression planted in the jurors’ minds, and that the court therefore would have granted” a motion for mistrial. See
Sweet v. State,
In any event, in this case it would not have been reversible error for the trial court to refuse a mistrial [or to overrule objections] because the evidence of [Reed’s] guilt was overwhelming, and it is highly probable that any improper argument did not contribute to the verdicts. [Cits.]
Lloyd v. State,
supra. The evidence of Reed’s guilt, “including his confession and the eyewitness testimony, is overwhelming.”
Smith v. State,
“Accordingly, there is no basis upon which to reverse the adverse determination of [Reed’s] claim that his trial counsel was ineffective and the consequent refusal to grant him a new trial.”
Jones v. State,
supra,
Judgments affirmed.
Notes
The crimes occurred on December 30, 2003, and the grand jury returned an indictment on February 25, 2004. The jury found Reed guilty on May 19, 2004, and, on that same day, the trial court entered the judgments of conviction and sentences on the guilty verdicts. The motion for new trial was filed on June 16,2004, amended on August 10,2010, and denied on August 19, 2011. The aggravated assault sentence was vacated on August 29, 2011, and Reed filed the notice of appeal on that same day. The case was docketed in this Court for the January 2012 term and submitted for decision on the briefs.