Appellant Sean Stewart appeals his conviction for the felony murders of Sam Walthour and Edward Morgan. 1 In early May 1998, appellant sold drugs to Sam Walthour for $50,000 in cash. Believing Walthour had more cash in his possession, appellant enlisted three other accomplices to help him rob Walthour. On May 12, 1998, appellant and his accomplices drove from Atlanta to Walthour’s house in Liberty County. Two of the three accomplices went inside the house to rob Walthour while appellant and the third accomplice, Chris Hanna, remained in the van. Meanwhile, Edward Morgan, Walthour’s friend, came by Walthour’s house. Upon approaching the house, Morgan was dragged inside the house. One of the accomplices inside the house fatally shot Morgan and Walthour each in his head. *670 The accomplices ran out of the house, entered the van, and all four men fled the scene. A witness testified that appellant threw the murder weapon into a river on the way back to Atlanta. Appellant admitted to police and testified under oath that it was his idea to rob Walthour and that he enlisted the others, setting the events of May 12, 1998, into motion.
1. 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 felony murder.
Jackson v. Virginia,
2. During the trial, one of Walthour’s neighbors testified that he heard yelling on the night of the shootings. The prosecutor asked if the witness believed the yelling to be “terrorizing,” and appellant objected on the basis of speculation. Once the trial court overruled the objection, the witness responded to the question in the negative. On appeal, appellant complains that the question was irrelevant to appellant’s guilt or innocence and that the word “terrorizing” served to inflame the jury. Inasmuch as appellant failed to object on the grounds he now asserts on appeal, this purported error is not preserved for review.
Arrington v. State,
3. At trial, the State introduced pre-autopsy photos of the victims. Appellant contends the pictures were gruesome and inflamed the jury because they included medical devices such as forceps, rulers, and head rests. Walthour was also depicted with duct tape about his hands and head. Appellant further complains that one of the photographs reflected the shaved head of the victim around the bullet wound and that the photographs were published to the jury via an ELMO projector. Appellant’s contentions are without merit.
The admission of photographic evidence is at the discretion of the trial court.
Sweet v. State,
4. Appellant contends error occurred when: the trial court admitted his custodial statements because he argues the statements were not voluntarily made; the trial court allowed jurors to refer to transcripts while listening to the recording of his verbal custodial statement and the reading of his written custodial statement; and when the trial court admitted appellant’s prior sworn testimony from the trial of his accomplice. For the reasons set forth below, there is no error.
(a) Whether a defendant knowingly and intelligently waives his constitutional rights depends on the totality of the circumstances and the trial court’s factual determinations on such matters will be upheld unless clearly erroneous.
Reed v. State,
(b) It was also not erroneous for the trial court to allow the jury to refer to transcripts while listening to the recording of appellant’s verbal statement and the police officer’s reading of appellant’s written statement. The trial court gave specific instructions to the jurors that the transcripts were not evidence, that the transcripts would not be sent back to the jury room, and that the jurors were to rely on what they heard when making their factual determinations. The use of the transcripts coupled with the trial court’s limiting instruction did not constitute error
(Cohen v. State,
(c) Appellant argues that his prior sworn testimony should have been excluded at his trial because, at the time the testimony was given, he was not represented by counsel and was not given his
Miranda
rights. The record reveals that prior to his trial, appellant entered into a negotiated plea agreement with the State, agreeing to testify against his accomplices. Appellant gave such sworn testimony in November 2003.
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Two years later, during appellant’s trial, the State sought to introduce appellant’s sworn testimony. The trial court advised that before the testimony would be admitted, it would have to be redacted to exclude any references to prior unrelated drug deals and references to appellant’s plea deal with the State. In addition, the parties stipulated and agreed that no cross-examination or objections would be read, and only appellant’s testimony on direct examination would be admitted into evidence. Although one of appellant’s two attorneys mentioned that appellant may not have been represented by counsel when he gave sworn testimony in November 2003 and that no
Miranda
warnings were given at the start of the testimony, the parties represented to the court that they were in agreement as to what portions of the prior testimony would come into the record. “A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.”
Holcomb v. State,
5. During the investigation of the events of this case, the authorities presented appellant with a photographic lineup and appellant identified one of the persons in the lineup as his accomplice. Upon further investigation, however, the authorities learned that appellant misidentified his accomplice. At trial, the State elicited testimony to this effect and also proffered a photograph of the actual accomplice which exhibited the accomplice’s distinguishing tattoos. Appellant argues that it was error to elicit this testimony and to enter the photograph into evidence. To the contrary, the evidence was relevant and, as such, was admissible, even if it suggested that appellant was untruthful.
Collins v. State,
6. Appellant complains that nine of his requested jury charges were not given to the jury. “A trial court’s refusal to give a jury charge in the exact language requested by a defendant is not error if the charge given by the trial court substantially covers the applicable principles of law.”
Keita v. State,
As for the ninth instruction, appellant complains that a charge on impeachment by proof of a crime of moral turpitude should have been given regarding the testimony of Reginald Hallman and Chris Hanna. At the time appellant’s trial commenced in November 2005, OCGA § 24-9-84.1 had just been enacted and became effective July 1, 2005. OCGA § 24-9-84.1 (a) (1) provides:
Evidence that a witness has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness; . . .
Our review of the trial transcript shows that Hallman
4
was quite forthcoming during his testimony that he was a criminal and had
*674
been convicted for his illicit activities which ranged from drug dealing to car theft. Hanna, the accomplice who drove the van to Walthour’s house, testified that his testimony was being given pursuant to a plea agreement with the State and, on re-direct, stated that he received four-and-a-half years of probation for robbery. Based on OCGA § 24-9-84.1 (a) (1) and the evidence presented, the trial court was not required to give appellant’s requested instruction on impeachment by proof of a crime of moral turpitude; although an instruction on impeachment by proof of a prior conviction was warranted. Any failure to give such an instruction was harmless, however, because neither Hallman nor Hanna were “primary” witnesses. See
Hollomon v. State,
7. When the State gave notice that it would be seeking the death penalty, appellant entered into a negotiated guilty plea deal in June 2002, agreeing to enter a guilty plea and testify against his accomplices in exchange for fifteen years in prison on one count of aggravated assault. In November 2003, appellant testified at his accomplice’s trial as agreed. On February 23, 2005, the trial court held a sentencing hearing and advised it was sentencing appellant to fifteen years for one count of aggravated assault as provided by the plea agreement. After the sentence was read, appellant requested to withdraw his guilty plea and go to trial. The trial court advised that it would not consider any further plea deals and, if appellant went to trial, he would be subject to receiving the maximum sentencing for any conviction. Upon conferring privately with counsel and confirming to the judge that he wanted to withdraw his guilty plea, the trial court allowed the plea to be withdrawn. Shortly before his trial commenced in November 2005, appellant moved to enforce the June 2002 plea agreement. On appeal, appellant alleges the trial court erred by denying his motion to enforce. We disagree. Once appellant repudiated receiving the benefit of his bargain, namely a lighter sentence on a lesser charge, and then withdrew his guilty plea, there was no longer a plea agreement for the trial court to enforce. Accordingly, appellant’s conviction is sustained.
Judgment affirmed.
Notes
The victims died on May 12, 1998. On November 15, 2000, the Liberty County grand jury jointly indicted Sean Stewart and Keiotta Tubbs for the malice murder of Sam Walthour, the malice murder of Edward Morgan, the felony murders (aggravated assault) of Walthour and Morgan, and the felony murders (armed robbery) of Walthour and Morgan. Appellant was tried alone before a jury on November 14-15, 2005 and found guilty of four counts of felony murder. Two of the felony murder counts were vacated by operation of law. Appellant received a life sentence for each of the two remaining felony murder convictions. Appellant moved for a new trial on November 28, 2005, and amended his motion on January 28, 2008. The motion for new trial was denied on March 6, 2009. Appellant filed a timely notice of appeal on March 25, 2009. The case was docketed in this Court on July 23, 2009, for a decision on the briefs.
Miranda v. Arizona,
Appellant subsequently withdrew his guilty plea and elected to go to trial. See Division 7, infra.
Hallman provided appellant with materials for use in the robbery, but was not one of the three accomplices who accompanied appellant to Walthour’s house in Liberty County.