ALLEN v. The STATE.
Miles Jonathan Allen appeals from his convictions and sentences for malice murder, aggravated assault, kidnapping, and false imprisonment, all in connection with the death of Carlnell Walker. For the reasons that follow, we affirm.1
Construed to support the verdicts, the evidence showed that Keith Roberts contacted Allen, as well as Breylon Garland and Theodore Holliman, about retaliating against Walker for disrespecting Roberts, and to get some money that Roberts believed Walker owed him. They went to Walker's home and broke in; Walker was not home, and Allen and Holliman waited for him while Roberts and Garland went to a store. Walker arrived: Allen struck him in the face, knocking him down, and Holliman bound him. When the other men returned, the four beat, stabbed, and tortured Walker; despite their demands, Walker said that he did not have the money that his attackers sought. The four then placed the bound and gagged Walker in the trunk of his car in the garage; he was still alive. Roberts and Holliman drove away, leaving Allen and Garland behind; shortly thereafter, Allen and Garland walked to a gas station to get a ride from a friend.
After Walker's mother had not heard from him in two weeks, a Clayton County police officer went to Walker's home on July 8, 2006, and found furniture upended, blood splatters on the walls, and Walker's decomposing body in the trunk of his car. Walker had been beaten, stabbed, bound, and placed in the trunk of the car. Allen's bloody palm print was recovered from Walker's hallway walls, and Allen's jeans were also found in the home, stained with Walker's blood. Walker died of hyperthermia from being left in the car.
Holliman testified for the State at Allen's trial. In his own defense, Allen testified that he was at the crime scene and participated in the violence against Walker, but only because he feared Roberts, who, during the commission of the crimes, said “what's happening to [Walker] could happen to anybody in the room.”
1. Allen contends that the evidence was insufficient to convict him of Count 3 of the indictment, felony murder while in the commission of armed robbery. However, Allen was sentenced for malice murder, and not for felony murder while in the commission of armed robbery, and any issue with regard to that count is now moot. See Bostic v. State, 294 Ga. 845, 847(1), 757 S.E.2d 59 (2014). As for the remaining charges, the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Allen was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Allen contends that the trial court failed to strike for cause a prospective juror who he claims was a United States Marshal with arrest powers. However, when he addressed the court regarding the prospective juror after the jury was selected, he referred to the prospective juror as a “POST certified officer,” and when the court corrected him, and noted that “he was actually a corrections officer I believe at the Federal Penitentiary,” Allen responded: “That's right.” The trial court correctly ruled that striking the challenged juror for cause was not required as “[a] corrections officer is not subject to an excusal for cause because he is not a sworn police officer with arrest powers. Pace v. State, 271 Ga. 829(10), 524 S.E.2d 490 (1999).” Prince v. State, 277 Ga. 230, 235(3), 587 S.E.2d 637 (2003). Although Allen now asserts that the State made an admission in judicio as to the prospective juror's status when it referred to him as a “U.S. Marshal,” read in context, the reference was made as part of the prosecutor's recollection as to why the prospective juror had “signed some paper for federal but not state. [Sic]”2 See Morgan v. Howard, 285 Ga. 512, 513(3), 678 S.E.2d 882 (2009). No evidence of the prospective juror's status was presented either at trial, or on the motion for new trial, and Allen fails to show that the trial court erred in refusing to strike him for cause. See Thornton v. State, 264 Ga. 563 Ga. 63, 573(13)(b), 449 S.E.2d 98 (1994).
3. After jury deliberations began, Allen moved for a mistrial, asserting that an article in the local newspaper showed that the chief prosecuting attorney had violated a gag order that the court had imposed; the article attributed statements to the prosecutor regarding Allen's motive. The order prohibited remarks concerning the defendant's guilt or innocence, and the evidence in the case, stating: “This Order may be enforced by the contempt powers of this Court.” The State noted that a reporter for the newspaper had been present during trial, as had television reporters, and that the text of the article could have been produced from the evidence presented, and from the opening statements of the prosecutor. The court denied the motion for mistrial, ruling that there was no evidence that any juror had seen it, or other news media coverage, which would have violated the court's regular instructions to the jury. And, “ ‘[i]t is presumed that jurors follow a trial court's instructions [cit.]’ “ Nelms v. State, 285 Ga. 718, 722(3), 681 S.E.2d 141 (2009) The court also found that there was no evidence that the chief prosecutor had, in fact, violated the gag order; the court noted that the information that was in the article and ascribed to the chief prosecutor was the same as that which had been presented during the court proceedings. The trial court did not err in denying the motion for mistrial. Id.
4. The State introduced a video recording of Allen's interview with investigating detectives, which was played for the jury. During the interview, Allen said he had “smoked” with the victim sometime before the day of the crimes, and a detective responded that he “[didn't] care” about “smoking weed.”3 Allen contends that this constituted an improper comment on his character, and that the trial court should have granted his motion for a mistrial. See Ryans v. State, 293 Ga. 238, 242(3), 744 S.E.2d 759 (2013). The court denied the motion and instructed the jury that anything in the detective's response represented only an assumption on his part, that there was no proof of Allen committing any marijuana offense, and that “any opinion or assumption of the detective in this regard” was to have no part in the jury's deliberations; the court further asked if any juror would not be able to follow these instructions, and there were no responses indicating that any juror would be so unable.
“Whether to grant a mistrial based on improper character evidence is within the discretion of the trial court. [Cit.] We have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant's prior convictions or criminal acts.” Bunnell v. State, 292 Ga. 253, 257(4), 735 S.E.2d 281 (2013). To the extent that the detective's comment suggested a criminal act on Allen's part, there was no error in denying the motion for mistrial based upon the incidental reference to Allen's character. See Moore v. State, 295 Ga. 709, 714(3), 763 S.E.2d 670 (2014); Roebuck v. State, 277 Ga. 200, 205(5), 586 S.E.2d 651 (2003).
5. During the playing of the same video recording, Allen objected to a detective's comment to Allen that “you don't know who I've talked to ․ you don't know what those people told me,” as well as the remark of a second detective that “somebody gave up your name,” and the admonition that Allen should reveal his fellow actors as “your buddies have already dropped the name on you.” Allen contends that the admission of the detectives' statements constituted a violation of his right to confront his accusers under the Sixth Amendment to the Constitution of the United States, i.e., that the statements of co-conspirators were placed before the jury without him having the opportunity to cross-examine the co-conspirators about the statements. However, the Sixth Amendment Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Cit.]” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177(IV) (n. 9) (541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) (2004). And, the detectives' statements were clearly not meant to establish as true that others had implicated Allen, but were simply a part of an interrogation technique. See Rowe v. State, 276 Ga. 800, 803(2), 582 S.E.2d 119 (2003). See also Jackson v. State, 262 Ga.App. 451, 585 S.E.2d 745 (2003) (overruled on other grounds by Carter v. State, 266 Ga.App. 691, 693(2), 598 S.E.2d 76 (2004); Huckeba v. State, 217 Ga.App. 472, 477(5), 458 S.E.2d 131 (1995). The detectives did not identify the “buddies” mentioned, and no substance of any supposed statements was placed before the jury by the detectives' reference. Compare Yancey v. State, 275 Ga. 550, 551–552(2), 570 S.E.2d 269 (2002).
Allen also contends that these statements constituted violations of then-effective OCGA § 24–3–52, which provided, in toto, that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” Assuming that this argument is preserved for appellate review,4 it has no merit. Again, no confession of a conspirator was admitted against Allen by virtue of the detectives' interrogation technique. Compare O'Neill v. State, 285 Ga. 125, 674 S.E.2d 302 (2009).
6. Outside the presence of the jury, Allen sought to exclude certain autopsy photographs, and the court noted that they would be admissible if they assisted the medical examiner in his testimony, and stated that the court would consider them on a “case by case basis.” In the presence of the jury, when the State sought to have nine autopsy photographs admitted, the trial court stated: “Before I'm going to admit them over the defendant's objection I'm going to need for [the witness] to say that these will assist, whether they will or will not assist, in his testimony and explanation of the cause of death in this case. [Sic.]” Although he made no such objection at the time,5 Allen now asserts that the court was improperly “coaching” the State and that such constituted a violation of OCGA § 17–8–57.6 And, on such a ground, the failure to object at the time would be of no moment, as “we have clarified that a violation of OCGA § 17–8–57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal. [Cit.]” State v. Gardner, 286 Ga. 633, 635, 690 S.E.2d 164 (2010). However, there is no such error here.
Although we strongly discourage the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense, the trial court did not “express or intimate [its] opinion as to what has or has not been proved [so as to violate OCGA § 17–8–57.]
Id. The court's statement did not express or intimate such an opinion, but only repeated its earlier ruling, and Allen fails to show error in the admission of the autopsy photographs at issue. Id .7
7. The trial court permitted a crime scene investigator to testify as to his analysis of blood patterns, over Allen's objection that the witness was not sufficiently qualified to do so.8
“To qualify as an expert ․ generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. [Cits.] Formal education in the subject at hand is not a prerequisite for expert status. [Cit.]” The trial court has broad discretion in accepting or rejecting the qualifications of the expert, and its judgment will not be disturbed on appeal absent an abuse of discretion. [Cit.]
Williams v. State, 279 Ga. 731, 732(2), 620 S.E.2d 816 (2005). The witness testified to his 18 years experience as a crime scene investigator, the considerable knowledge he had gained thereby, and about his studies over that time, which included blood pattern analysis. The trial court did not abuse its discretion in allowing the witness to testify as to blood pattern analysis. Id.
8. Allen attempted to introduce evidence through a psychiatrist who would have testified in support of Allen's defense of coercion that Allen is susceptible to being “led” into crime by another person to a greater extent than most people; the psychiatrist's report stated that Allen did not suffer from any major mental illness. The trial court granted the State's motion in limine on the basis that Allen had not complied with the criminal discovery statutes, see OCGA § 17–16–4, and that the proffered evidence was irrelevant to Allen's asserted defense of coercion. See OCGA § 16–3–26.9 We need not determine if the trial court was correct to find a discovery violation.
Evidence of a criminal defendant's mental disability may be presented in support of a defense of insanity or delusional compulsion (see OCGA §§ 16–3–2 and 16–3–3); a claim of incompetency to stand trial (see OCGA § 17–7–130); or, since such pleas were authorized, a plea of guilty but mentally ill or guilty but mentally retarded (see OCGA § 17–7–131)—none of which Appellant raised in this case. For more than 150 years, however, this Court has consistently upheld the exclusion of evidence of a defendant's diminished mental condition when offered to support other defenses or to negate the intent element of a crime. [Cits.]
Thompson v. State, 295 Ga. 96, 98–99(2), 757 S.E.2d 857 (2014). The defense of coercion is predicated on the reasonable person standard, not the subjective situation of the defendant. See O'Connell v. State, 294 Ga. 379, 382(3) (754 S.E.2d 29 (2014); Harris v. State, 279 Ga. 304, 308(3)(c), 612 S.E.2d 789 (2005); Bryant v. State, 271 Ga. 99, 101(3), 515 S.E.2d 836 (1999). The trial court did not err in determining that the proffered evidence was irrelevant.
9. Allen asserted the affirmative defense of coercion and the court instructed the jury on the law thereof, using the language of OCGA § 16–3–26, stating that “[a] person is not guilty of a crime, except murder, if the [criminal] act” was coerced in the manner set forth in the statute. Allen now urges that the trial court should have specifically informed the jury that coercion could be a defense to the felonies that underlay the felony murder charges. See Kelly v. State, 266 Ga. 709, 711(2), 469 S.E.2d 653 (1996). However, Allen “did not submit a request, written or otherwise, for such a charge, and thus there was no error in failing to give any such instruction. [Cits.]” Lewis v. State, 291 Ga. 273, 278(4), 731 S.E.2d 51 (2012). Further, the trial court did not enter judgments of conviction and sentence as to those counts, and any issues concerning those jury instructions are moot. Parker v. State, 282 Ga. 897, 899(4), 655 S.E.2d 582 (2008).
Allen also argues that, as to the malice and felony murder counts, the trial court should have instructed the jury on what he contends was his sole remaining defense, i.e., that which has been referred to as “the omnibus justification defense of OCGA § 16–3–20(6).”10 Gravitt v. State, 279 Ga. 33, 35(2), 608 S.E.2d 202 (2005). See Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991). His argument is that he feared for the lives of his family at the hands of Roberts if he did not do what Roberts wished, as well as his own life, and thus there was “evidence of ‘a threat of imminent death or great bodily injury to two or more people, which [he could] avoid only by killing one innocent person․’ [Cit.]” Gravitt, supra at 34, 608 S.E.2d 202. However, such a justification defense would not fall under the omnibus provision of OCGA § 16–3–20(6); under that provision, the asserted defense must “stand upon the same footing of reason and justice as those [defenses] enumerated” in Title 16, Article 2, of the Code. And, to the extent that Allen claimed justification because of a threat to his family, such would not stand upon the same footing as the defenses so enumerated; the justification defenses enumerated in the Article that contemplate the use of force do so in the face of a current or imminent threat, see OCGA §§ 16–3–21; 16–323; 16–3–24; & 16–3–26, and there is no evidence that Roberts was in a position to harm Allen's family when Allen committed his acts. As to any claim that Allen was himself under an immediate threat, it is identical to the claim that Allen was coerced by Roberts into killing Walker; as such a claim is explicitly removed from the coercion defense of OCGA § 16–3–26, the asserted defense clearly does not stand upon the same footing of reason and justice as the defense enumerated in OCGA § 16–3–26. The evidence did not support a charge under OCGA § 16–3–20(6). Gravitt, supra at 35, 608 S.E.2d 202.
10. Finally, Allen claims that his trial counsel failed to provide effective representation in that counsel failed to persuade the trial court to strike for cause the prospective juror referred to in Division 2, supra. In order to prevail on a claim of ineffective assistance of counsel, Allen must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the “strong presumption” that counsel's performance fell within a “wide range of reasonable professional conduct,” and that counsel's decisions were “made in the exercise of reasonable professional judgment.” Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783. “ ‘We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).
As noted in Division 2, supra, no evidence was ever produced, either at trial, or during the hearing on the motion for new trial, that the prospective juror could have been struck for cause. Accordingly, Allen cannot show prejudice on this claim of ineffective assistance of trial counsel. Geiger v. State, 295 Ga. 648, 653–654(5)(b), 763 S.E.2d 453 (2014).
HINES, Presiding Justice.
All the Justices concur.