Appellant Eric Rogers was indicted for the malice and felony murders of Mark Birmingham and Darnell Patterson. The trial court denied a motion for discharge and acquittal which alleged violations of Appellant’s constitutional and statutory rights to a speedy trial, and this Court affirmed.
Rogers v. State,
1. Construed most strongly in support of the verdicts, the evidence shows that, when Appellant was approximately 19 years old, he befriended his six-year-old nephew Chris Probst and then began engaging in homosexual acts with Probst which continued until he was age 12, resumed at age 15, and ceased at age 18. In 1991, when Appellant was 30 years old, he also befriended 15-year-old Mark Birmingham and began engaging in homosexual acts with him. Probst testified that he witnessed some of Appellant’s homosexual *402 acts with Birmingham, that Appellant took Probst into the woods near their DeKalb County home where Birmingham lay after being shot to death, and that Probst helped Appellant dig a grave.
In 1994, Appellant befriended 18-year-old Darnell Patterson and began engaging in homosexual acts with him. After Patterson disappeared in 1995, Appellant moved to Mississippi and admitted to Richard Husband that, after attending the Super Bowl with Patterson and taking him back to Atlanta, Appellant murdered Patterson by shooting him in the back of the head. While in Mississippi in 2000, Appellant befriended 18-year-old Benjie Keyes, hit him in the head with a hammer, broke two of his teeth with a gun, handcuffed him to a pipe, forced him to perform homosexual acts, and took him into the woods to kill him. Keyes managed to talk Appellant out of killing him. Appellant was arrested, convicted of aggravated assault, and imprisoned in Mississippi. Probst led police officers to the wooded spot where Birmingham’s body was buried. Patterson’s body was never found.
With respect to the murder of Patterson, Appellant asserts that his confession to Husband was not corroborated by sufficient supporting evidence and was not sufficient proof that venue was proper in DeKalb County. As to venue, OCGA § 17-2-2 (h) provides that “[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” “[U]se of subsection (h) to determine venue in a homicide case is not precluded. [Cits.]”
Nelson v. State,
As for the corroboration vel non of Appellant’s confession to Husband, OCGA § 24-3-53 provides that “[a] confession alone, uncorroborated by any other evidence, shall not justify a conviction.” “However, a confession, freely and voluntarily made, is evidence of the highest character, and any corroboration thereof will be sufficient to sustain a conviction. [Cit.]”
Carswell v. State,
2. At a pre-trial hearing on the admissibility of Appellant’s statement to Georgia investigators at the Mississippi prison, defense counsel requested redaction of those portions of the statement where Appellant identified which of certain named individuals he had had sex with. She also argued that admission of Appellant’s statement that he did not want to answer the same question with respect to Probst would constitute an improper comment on Appellant’s right to remain silent. After being asked by the State to reserve ruling on that specific statement, the trial court excluded the portions in question except for that related to Probst and directed both parties *404 not to go into the issue regarding Probst until the jury is excused and the issue is discussed again. At trial, Investigator Alan Traylor testified, in response to the prosecutor’s questions and without objection, that Appellant did not want to talk about the question of whether he had had sex with Probst. Appellant contends that the State’s disregard of the trial court’s preliminary ruling concerning invocation of Appellant’s right to remain silent constituted prosecu-torial misconduct.
“Absent exceptional circumstances, claims of prosecutorial misconduct raised[, as in this case,] for the first time after trial ‘will not warrant reversal on appeal,’ [cit.]”
Fugate v. State,
Moreover, Appellant’s refusal to answer a particular question during the custodial interview in Mississippi was admissible. We have held that an assertion of the right to remain silent during custodial interrogation “must be unambiguous and unequivocal before interrogators are required to stop their questioning [cit.] ...”
Green v. State,
Resolution of that question depends on whether [the accused] articulated a “ ‘desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.’ ...” [Cit.]
Perez v. State,
in such a situation that a defendant’s failure to respond to some questions during questioning — while responding to others — may be the subject of testimony at defendant’s trial, at least where the defendant’s silence cannot be construed as an attempt to reassert his rights and cut off questioning altogether. [Cits.] (Emphasis in original.)
People v. Hart,
supra. See also
United States v. Burns,
a suspect’s refusal to answer certain questions is not tantamount to the invocation, either equivocal or unequivocal, of the constitutional right to remain silent and that questioning may continue until the suspect articulates in some manner that he wishes the questioning to cease.
United States v. Mikell,
The defendant’s failure to answer one specific question “must be interpreted in the context of his willingness to *406 talk both immediately prior to and subsequent to” this particular question. [Cit.] . .. [F]or the rule of Miranda . . . to apply, “there must be ... an expressed unwillingness to continue,” which [Appellant] did not manifest. [Cit.] [Contrary to his argument on appeal, he] could not “pick and choose,” because “(i)f he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. . . .” [Cit.] (Emphasis in original.)
Commonwealth v. Senior,
supra at 621 (4). “ ‘[S] elective silence is not protected... .’ [Cits.]”
State v. Fluker,
supra at 1224 (I). “A defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate ‘an interrogation already in progress.’ [Cit.]”
People v. Silva,
We conclude that the trial court properly found, in its order denying the motion for new trial, that Appellant’s expressed desire not to talk about a particular “subject in the middle of a lengthy Mirandized statement is not an ‘invocation of the right to silence’ so as to raise the concerns addressed ... in Mallory v. State.” Thus, even if this enumeration was preserved, it is without merit.
3. Appellant further contends that the trial court erred in admitting evidence of sexual misconduct by him against Probst, Birmingham, and Keyes.
The testimony regarding Probst and Keyes is referred to as similar transaction evidence under Georgia law. Although we recently held that a defendant is not required to repeat an objection at trial to such evidence that was raised and overruled at a hearing pursuant to Uniform Superior Court Rule 31.3 (B), we also held that our ordinary rules for objecting to evidence apply, including the standard practice of allowing parties to raise on appeal only the same objections which were properly preserved in the trial court.
Whitehead v. State,
*407
Moreover, Appellant’s contentions regarding the evidence of his sexual misconduct are without merit. As the trial court specifically found, this evidence showed homosexual activity which occurred between the defendant and much younger victims by use of force or coercion. Thus, even though two of the relationships did not ultimately result in the victim’s death, the evidence was properly tendered and admitted, not to show that Appellant committed the crimes charged, but for the appropriate purposes of showing a course of conduct and pattern of behavior.
Humphrey v. State,
Appellant argues that the prior sexual misconduct evidence was too remote in time from the trial to be probative and reliable. However, the relevant measure has virtually always been the lapse of time between the prior similar offense and commission of the offense for which the defendant is being tried. See
Henry v. State,
We note that, contrary to another of Appellant’s contentions, the trial court included the sexual misconduct against Birmingham in its
*408
findings with respect to the similar transaction evidence even though it was not required to make the same findings for prior difficulties as for similar transactions.
Wall v. State,
“[u]nlike similar transactions, prior difficulties do not implicate independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. Thus, the admissibility of evidence of prior difficulties does not depend upon a showing of similarity to the crime for which the accused is being tried. Evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.” [Cit.]
Withers v. State,
4. After the jury had deliberated about four hours, soon after 6:00 p.m. on a Wednesday, it submitted a question and also requested to rehear the testimony of Husband and Probst. The trial judge consulted with counsel, answered the question, and informed the jury that replaying the testimony would take about two-and-a-half hours and would have to be done that evening because of the upcoming deadline caused by the holiday closing of the court on Friday. The trial judge asked the jurors to let him know what they wanted to do in about ten minutes, and the jury instead returned in about 35 minutes after reaching verdicts on all charges. Appellant urges that the trial court’s actions, including its failure to give the jurors the option to rehear the testimony in the morning, improperly pressured and coerced the jury into rendering a hasty guilty verdict.
As Appellant concedes, however, defense counsel never objected to the trial court’s actions. Therefore, this issue is waived on appeal.
Rivera v. State,
5. On motion for new trial, Appellant claimed that his pre-trial counsel rendered ineffective assistance in the interlocutory appeal from the denial of the motion for discharge and acquittal. The State filed a motion to dismiss this claim, which the trial court granted. Appellant separately enumerates this ruling as error, although he also raises several claims of ineffective assistance in other enumerations.
In
Wilson v. State,
must show that counsel’s performance was not reasonable under the circumstances and that counsel’s deficient per *410 formance prejudiced him, i.e., that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. [Cits.] When appellate counsel’s performance is alleged to be deficient because of a failure to assert an error on appeal, “the controlling principle is ‘whether (appellate counsel’s) decision was a reasonable tactical move which any competent attorney in the same situation would have made.’ (Cit.)” [Cits.] With respect to the prejudice prong, a petitioner must show that, but for appellate counsel’s errors or omissions, “there was a reasonable probability that the outcome of the appeal would have been different. (Cit.)” [Cit.]
Hall v. Lewis,
Other claims by Appellant of ineffective assistance are that his trial counsel did not adequately cross-examine Probst and failed to seek a continuance after receiving Husband’s statement at trial. However, Appellant did not offer any evidence at the motion for new trial hearing as to how additional time to interview Husband or to prepare further for cross-examination would have benefitted his case.
Childs v. State,
Other ineffectiveness claims involve trial counsel’s failure to make objections which we have already determined would not have had any merit. “‘“Failure to make a meritless objection cannot be evidence of ineffective assistance.” (Cit.)’ [Cits.]”
Henry v. State,
6. In his final enumeration regarding the denial of the motion for new trial, Appellant briefly makes other claims which do not involve the alleged ineffective assistance of counsel. Although Appellant contends that the trial court erroneously failed to sever the Birmingham murder charges from the Patterson murder charges, there is no motion to sever in the record.
Pye v. State,
Appellant further argues under this same enumeration, which is expressly limited to the motion for new trial, that numerous irrelevant and prejudicial photographs showing a sexual interest in adolescent black youths were erroneously admitted into evidence. However, this particular claim was not raised in the motion for new trial and has therefore been waived. See
Brown v. State,
7. Appellant also requests that the allegations in the motion for new trial be incorporated by reference. To the extent that this request “asserts a claim of error, it is deemed abandoned. It is not supported in the brief by citation of authority, argument, or reference to the record. [Cit.]”
Sapeu v. State,
Judgments affirmed.
Notes
The crimes occurred on August 17, 1991 and on January 27, 1995, and the grand jury returned an indictment on August 23, 2007. The jury found Appellant guilty on March 31, 2010, and, on the following day, the trial court entered the judgments of conviction and sentences. The motion for new trial was filed on April 29, 2010, amended on December 9 and 22, 2010 and on February 3, 2011, and denied on June 2, 201Í. Appellant filed the notice of appeal on June 14, 2011. The case was docketed in this Court for the September 2011 term and submitted for decision on the briefs.