Opinion
S02A0014.
DECIDED: MARCH 11, 2002.
Murder. DeKalb Superior Court. Before Judge Castellani.
Maria Murcier-Ashley, for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.
After a jury found Darryl Adams guilty of malice murder, the trial court sentenced him to life imprisonment. His motion for new trial was denied, and he appeals.
The crime occurred on December 22, 1998. The grand jury returned its indictment on August 5, 1999. The jury found Adams guilty on April 12, 2000 and, on the same day, the trial court entered the judgment of conviction and sentence. Adams filed a motion for new trial on April 19, 2000, and amended it on July 25, 2001. The trial court denied that motion on August 3, 2001, and Adams filed a notice of appeal on August 28, 2001. The case was docketed in this Court on September 19, 2001 and submitted for decision on November 12, 2001.
1. Construed most strongly in support of the verdict, the evidence shows that the victim befriended Adams at a gas station and offered him a ride. Adams told police that the victim stopped at a nearby field and made homosexual advances, and that the two began to struggle. After they exited the vehicle, Adams fatally shot the victim 15 times in the head and torso. Adams fled in the victim's car and later told a friend that he shot someone who begged for his life, at which time Adams continued shooting. Additional evidence corroborated Adams' statements. The evidence was sufficient to authorize a rational trier of fact to find Adams guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Harris v. State, 274 Ga. 422 (1) ( 554 S.E.2d 458) (2001).
2. Adams contends that the trial court erred in denying a mistrial after a detective, testifying for the State on direct examination, informed the jury that Adams was a suspect in an unrelated burglary case. The testimony was not responsive to the prosecutor's question. "A nonresponsive answer that impacts negatively on a defendant's character does not improperly place the defendant's character in issue." Hansley v. State, 267 Ga. 48, 49 (3) ( 472 S.E.2d 305) (1996). See also Williams v. State, 269 Ga. 827, 829 (5) ( 504 S.E.2d 441) (1998). The trial court immediately gave comprehensive curative instructions, which we must presume that the jury followed. Johns v. State, 274 Ga. 23, 25 (3) ( 549 S.E.2d 68) (2001). The trial court also asked the jurors whether any of them would be unable to disregard the testimony. Gross v. State, 259 Ga. 627, 628 (3) ( 385 S.E.2d 674) (1989), overruled on other grounds, Duckworth v. State, 268 Ga. 566, 569 (1), fn. 11 ( 492 S.E.2d 201) (1997). None indicated an inability to do so. Under these circumstances, and in light of the strong evidence of guilt, Adams' right to a fair trial was adequately preserved, and the trial court did not abuse its discretion in denying the motion for mistrial. Williams v. State, supra at 829 (5); Gross v. State, supra at 628 (3).
3. Adams enumerates the giving of a charge that "[t]he jury can believe any statement [made by a defendant] in whole or in part, believing that which you find to be true, rejecting that which you find to be untrue." This is a correct charge which is set out in the Suggested Pattern Jury Instructions for Criminal Trials. Brooks v. State, 232 Ga. App. 115 (1) ( 501 S.E.2d 286) (1998); Snow v. State, 228 Ga. App. 649, 652 (7) ( 492 S.E.2d 564) (1997).
Adams asserts, however, that the charge erroneously allowed the jury to ignore the portions of his statement which demonstrated his fear of the victim and supported his defense of justification. Where a defendant's statement concerning his involvement in a homicide is consistent with the physical facts, and the prosecution does not introduce other evidence showing the defendant's participation, a jury is not authorized to believe an inculpatory part of a specific portion of the statement and reject an exculpatory component of the same portion of the statement.Walsh v. State, 269 Ga. 427, 429 (1), fn. 4 ( 499 S.E.2d 332) (1998); Terry v. State, 243 Ga. 11, 12 (1) ( 252 S.E.2d 429) (1979). However, the jury may accept other portions of the statement which are inculpatory if they do not "contain an exculpatory component."Walsh v. State, supra at 429 (1), fn. 4. In this case, Adams' statement does not indicate that he was in fear of the victim, but it does disclose that he emptied his semi-automatic handgun into the victim's body. Even if some portion of the statement arguably supported the claim of self-defense, the jury was authorized to reject it, in light of the number of shots fired, Adams' departure from the scene in the victim's car without seeking help, his concealment of the shooting with his inconsistent statements, and his alibi testimony at trial. Brown v. State, 249 Ga. 805, 806 ( 294 S.E.2d 510) (1982); Nettles v. State, 249 Ga. 787, 789 (1) ( 294 S.E.2d 492) (1982). "[A] person who fatally wounds another, even in self-defense, is not entitled to hasten the victim's death by continuing to pump bullets into the victim's body." Brown v. State, supra at 806.
4. Adams further contends that the trial court erred in allowing the search warrant and its accompanying affidavit into the jury room. "However, the record reflects that appellant reviewed the exhibits prior to their submission to the jury and voiced no objection. Accordingly, this issue has not been preserved for our review." McDaniel v. State, 204 Ga. App. 753, 754 (1) ( 420 S.E.2d 636) (1992). See also Gribble v. State, 248 Ga. 567, 572 (7) ( 284 S.E.2d 277) (1981); Thomason v. State, 215 Ga. App. 189, 190 (4) ( 450 S.E.2d 283) (1994). Moreover, nothing in the record shows that the warrant and affidavit were sent out with the jury. Stidem v. State, 246 Ga. 637, 639 (3) ( 272 S.E.2d 338) (1980).
5. Adams urges that he was denied effective assistance of trial counsel in several particulars. See Strickland v. Washington, 466 U.S. 668 ( 104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). "A strong presumption exists that [Adams'] lawyer provided him with effective representation. [Cit.]" Dewberry v. State, 271 Ga. 624, 625 (2) ( 523 S.E.2d 26) (1999). This presumption is especially strong in this case because, at the hearing on the motion for new trial, Adams' trial attorney testified regarding the strategy underlying each decision of which Adams complains.Dewberry v. State, supra at 625 (2). "Having tried the case and heard from . . . trial counsel, the trial court found that there was no denial of effective assistance of counsel, and that finding must be affirmed unless it is clearly erroneous. [Cit.]"Cammon v. State, 269 Ga. 470, 472 (4) ( 500 S.E.2d 329) (1998).
In its written order on the motion for new trial, the trial court found that defense counsel was very experienced, met with Adams five to ten times prior to trial, undertook extensive investigation and preparation, and had access to and permission to copy the State's entire file. The trial court further found that the trial attorney's strategic decisions regarding whether to cross-examine ferociously, to object at every possible point, and to design a closing argument were reasonable in light of the case's posture and the evidence known to him. The trial court also ruled that the failure to call a witness suggested by Adams was understandable because the evidence would only be self-serving and subject to objection. The decision of which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.Dewberry v. State, supra at 625 (2). With respect to Adams' contention that closing argument was not consistent with his testimony as to alibi, defense counsel did not discover that Adams had asked a potential witness to lie about the alibi defense, and had apparently lied himself, until Adams had already testified. In fact, the alibi witness actually testified for the State in rebuttal. "[T]rial counsel is not required to anticipate that his own client and corroborating witnesses have misled him."Nicholson v. State, 265 Ga. 711, 715 (4) ( 462 S.E.2d 144) (1995). Counsel's failure to anticipate the corroborating witness' recantation and her testimony as a rebuttal witness was not unreasonable. "Any prejudice to the alibi defense was attributable to [Adams] and his corroborating witness, and not to the ineffectiveness of his trial counsel. [Cit.]" Nicholson v. State, supra at 715 (4).
Based upon the foregoing, as well as our review of the transcript of the hearing on the motion for new trial, we conclude that Adams failed to carry the burden of rebutting, by clear and convincing evidence, the strong presumption that he received effective assistance of trial counsel. See Cammon v. State, supra at 474 (4); Flanigan v. State, 269 Ga. 160, 163 (2) ( 496 S.E.2d 255) (1998); Love v. State, 268 Ga. 484, 486 (4) ( 490 S.E.2d 88) (1997). Moreover, even assuming that Adams did show any ineffectiveness on the part of his trial attorney, he nevertheless did not make the requisite additional showing that, but for the ineffectiveness, the jury would not have found him guilty of malice murder. Riley v. State, 268 Ga. 640, 642 (2) ( 491 S.E.2d 802) (1997). Because the trial court's findings are not clearly erroneous, its decision must be affirmed. See Cammon v. State, supra at 474 (4).
6. Adams also contends that the trial court erroneously admitted two of his statements because the police, in violation of Edwards v. Arizona, 451 U.S. 477 ( 101 S.Ct. 1880, 68 L.Ed.2d 378) (1981), continued to question him after he requested a public defender. At the Jackson-Denno hearing, however, the trial court heard police testimony that Adams never requested an attorney, and specifically found that Adams' testimony was not credible. We must accept this credibility determination, as it was not clearly erroneous. See Hammond v. State, 273 Ga. 442, 447 (4) ( 542 S.E.2d 498) (2001).
Judgment affirmed. All the Justices concur.
DECIDED MARCH 11, 2002.