author: Doyle, Judge.

text:
    A10A2160.
    HOWARD v. THE STATE.
    (706 SE2d 136)
   Doyle, Judge.

Joseph L. Howard appeals from the denial of his post-conviction motion for deoxyribonucleic acid (“DNA”) testing filed pursuant to OCGA § 5-5-41 (c). Discerning no reversible error, we affirm.

In 1989, a jury found Howard guilty of burglary and rape, and the trial court sentenced him to 20 years and life imprisonment, respectively. In Howard’s direct appeal, this Court affirmed the conviction in an unpublished opinion, Case No. A90A0469, on May 9, 1990. Twenty years later, Howard filed this pro se “Request for D.N.A. Testing,” seeking the production of all physical evidence and testing of certain material containing DNA. Following an evidentiary hearing at which Howard appeared and argued, the trial court denied Howard’s motion, giving rise to this appeal.

Decided February 9, 2011.

Joseph L. Howard, pro se.

Dennis C. Sanders, District Attorney, Kevin R. Majeska, Assistant District Attorney, for appellee.

OCGA § 5-5-41 (c) (1) provides in part that “a person convicted of a serious violent felony . . . may file a written motion before the trial court that entered the judgment of conviction in his or her case, for the performance of forensic deoxyribonucleic acid (DNA) testing.” The statute then enumerates certain prerequisites that must be met to obtain DNA testing. When, as here, a hearing is warranted and held, the purpose of the hearing is in part “to allow the parties to be heard on the issue of whether the petitioner’s motion complies with [the statute] . . . and whether the . . . evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion.” If the trial court determines that this showing has been made and other requirements have been met, the trial court must grant the motion for testing.

Here, the case agent testified and explained that in 1989, when Howard was convicted, DNA testing was not available to the State, and any testable evidence from Howard’s trial had since been destroyed. There was no evidence showing otherwise, nor was there evidence of bad faith on the part of the State. Under these circumstances, Howard failed to meet the statutory requirements, and the trial court did not err in denying Howard’s motion for DNA testing.

We note that Howard’s appellate brief argues other alleged errors, but it is clear from the record that the only issue taken up at the hearing and ruled upon by the trial court was the availability of DNA testing. Accordingly, we are presented with nothing more to review.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       We have jurisdiction in this appeal pursuant to the rationale set forth in State v. Clark, 273 Ga. App. 411, 413-415 (1) (615 SE2d 143) (2005).

       See Williams v. State, 289 Ga. App. 856 (658 SE2d 446) (2008).

       A hearing is required only if the court determines that the motion complies with certain threshold requirements. See OCGA § 5-5-41 (c) (6) (A).

       OCGA § 5-5-41 (c) (6) (E) & (c) (7) (A).

       See OCGA § 5-5-41 (c) (7).

       See OCGA § 5-5-41 (c) (7) (A).

       See Grant v. State, 289 Ga. App. 230, 236 (5) (656 SE2d 873) (2008) (appellate courts cannot consider questions not presented to or ruled upon by the trial court).


source: Caselaw Access Project

license: Public Domain

text:
    A10A2215.
    A10A2216.
    In the Interest of R. C. H., a child. In the Interest of R. E. H., a child.
    (706 SE2d 686)
   Doyle, Judge.

The father of eleven-year-old R. E. H., a girl, and nine-year-old R. C. H., a boy, appeals from a juvenile court order finding the children to be deprived, arguing that the finding of deprivation was contrary to the evidence and that the juvenile court erred by: admitting and considering certain photographs obtained during a search of the father’s home; finding that the Department of Family and Children Services (“the Department”) used reasonable efforts to avoid removal of the children; and refusing to allow the father’s counsel to obtain a copy of the forensic interviews of the children. We affirm, for reasons that follow.

On appeal from a determination that a child is deprived we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. In so doing, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the juvenile court’s fact-finding and affirm unless the appellate standard is not met.

In December 2009, the Department received a referral alleging that in approximately December 2008, the father locked R. C. H. in a closet for two to three days without food or water, and he forced R. E. H. to touch “his private area.” When a Department investigator went to the father’s house and told him about the allegations regarding R. C. H., the father immediately turned to the children and asked them, in the presence of the investigator, whether he ever denied them food or water or locked them in a closet, and the children responded, “No.” After the investigator told the father that she usually spoke to children and parents separately, the father repeatedly asked her whether she had what she needed, and the investigator left.

The investigator interviewed the children at their school in January 2010, at which time they denied that the father locked R. C. H. in the closet or deprived them of food or water. On February 1, 2010, the investigator, a Department case manager trainee, and a detective went to the father’s home again, but before the investigator could finish her introductions, the father “handed [her] a [business card for his lawyer],. . . asked if [they] were done, and told [her] to get off his property.” That same day, the juvenile court entered an order permitting the Department to take the children into custody and place them in foster care.

On February 4, 2010, the Department filed a deprivation petition alleging that R. E. H. and R. C. H. were deprived because (1) an allegation had been made that the father locked R. C. H. in a closet without food or water (which the children denied); (2) R. E. H. reported that the father sexually abused her; (3) both children made disclosures of physical abuse by the father; (4) the children were “extremely dirty and ill-groomed” when they were taken into custody by the Department; (5) the father demonstrated an inability to provide for the children in a safe and stable manner; and (6) the children were without proper parental supervision as required by law.

On February 3, 2010, the children submitted to forensic interviews. According to the interviewer, who testified at the disposition hearing, R. E. H. cried and was upset throughout the interview, while R. C. H. “was not really emotional. It was almost as if he really didn’t have any feelings about anything either way.” During her interview, R. E. H. reported that her father made her touch him, drawing near the penis on an anatomical drawing, but pointing to an area directly above that, which the interviewer referred to as “the base of the penis” on the drawing.

The children were also interviewed by a psychologist in February 2010, who testified that R. C. H. told her that his father “beats the crap out of me[J . . . shoved me against the wall[,] and it put a hole in the wall,. . . [and] used his fist to hit me in the face[,] and it gave me a black eye and a bloody nose and a busted lip.” R. C. H. also told the psychologist that the father locked him in a closet for “a couple of days,” denying him access to the bathroom or food for the first day and instructing R. E. H. to tell the school that her brother was sick. R. C. H. also reported that the father forced him to stand in a corner and threw DVD boxes at him, and that the father repeatedly called him stupid and “beat the crap out of him every day.” R. E. H. reported that her father “would spank her so hard that she screamed,” leaving bruises on her. R. E. H. also indicated in writing to the psychologist that “[her father] sexual[l]y abused [her] several times. He did it in bed once and made [her] touch him on his private part.” The psychologist testified that the children “are terrified of their father” and “fear further harm at his hands.”

The children’s initial foster mother testified that when the children first arrived at her home, they were “nasty [and] filthy.” R. C. H.’s toenails “were so long they wrapped around[,] . . . and unbelievable gunk was ... in them,” and his ears contained crusty, “black gunk.” R. E. H.’s hair was like “a little rat’s nest” and “came out in clumps” when she brushed it. R C. H.’s clothes had a foul odor and were too small, and his school planner contained mold. According to the foster mother, the children were in “the worst shape, cleanliness-wise,” of any of the 78 to 80 foster children she had cared for.

R. E. H. testified at a hearing that she had touched her father’s “pee-pee” and that her father hit R. C. H. in the head, which hit the wall in the bathroom and left a hole. The father also testified at the hearing, explaining that the children’s mother left when R. E. H. was two years old, and she had not seen the children in several years. The children had lived with the father since birth, except for a year beginning in July 2003 when the father was incarcerated, during which time the children lived with his aunt and father. The father and the children moved to Georgia from Arizona in the summer of 2006. The children do not have a regular doctor, and the father did not know their teachers’ names. The father “absolutely” denied sexually abusing R. E. H., and he testified that R. C. H. made “lots of stories up.”

On March 22, 2010, following the final hearing, the juvenile court entered an order finding that the children were deprived and without proper parental care and control, and that the causes of deprivation were as follows: The court ordered that the children be placed in the temporary custody of the Department “pending timely receipt of the relative search report from the Department” and that the father complete a case plan for reunification.

[H]e has failed to maintain a clean home, has neglected the hygiene of the children, has abdicated [R. C. H.’s] educational needs to others, has abdicated the cooking and cleaning to [R. E. H.], has allowed or required [R. E. H.] to become “parentified” and thus she has become [R. C. H.’s] caretaker and housekeeper, has allowed or required [R. E. H.] to cook and maintain the wood stove, has been physically abusive of [R. C. H.] and has been sexually abusive with [R. E. H.].

1. The father argues that the juvenile court erred by finding that there was clear and convincing evidence that the children were deprived. We disagree.

OCGA § 15-11-2 (8) (A) provides that a child is deprived if he or she is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “That definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.”

Here, the evidence supports the juvenile court’s finding that the children were deprived. “Even assuming certain findings of the juvenile court are not supported by the record, there remain many [authorized] findings that support the court’s finding of deprivation.” Although there may have been testimony from witnesses stating that they never saw any problems with the children, “this Court neither weighs the evidence nor determines the credibility of witnesses. We instead defer to the [juvenile] court’s factfinding and affirm unless the appellate standard is not met.” The evidence that the father physically abused R. C. H., sexually abused R. E. H., and neglected the children’s hygiene was sufficient to meet this standard.

We find no merit in the father’s argument that because the alleged sexual abuse of R. E. H. took place a year before the referral to the Department, it was “an ‘isolated incident,’ which standing alone, cannot formulate the basis for a finding of deprivation.” Here, the sexual abuse allegation was not the sole basis for the finding of deprivation. Furthermore, a juvenile court is authorized to consider a parent’s past conduct in determining the likelihood that such conduct would continue in the future.

2. The father further argues that the trial court erred by admitting, over the father’s objection, photographs of the father’s home. The photographs were taken by Lynn Deaver, an investigator with the Paulding County Sheriff’s Department, while executing a search warrant that authorized her to examine the home’s interior walls to look for indentations consistent with the children’s allegations that the father smashed R. C. H.’s head into a wall. While in the home, Deaver took photographs of various items, which she testified were “in plain view,” including a wood stove with license plates attached to the front as a door; a box in the basement containing animal feces; a wall that appeared to have been patched at some point; and a table containing a small propane tank and aerosol cans located in the same room as the wood stove.

The father argues that the juvenile court erred by admitting and considering the photographs taken by Deaver because they “depicted information that was clearly outside the scope of that search warrant,” and thus, the juvenile court’s consideration of them violated the father’s rights under the Fourth Amendment of the United States Constitution. This argument is without merit.

“The Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution guarantee the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” Pretermitting whether a purported Fourth Amendment violation would preclude the admission of photographs in a child deprivation action, police officers are authorized to take photographs of items observed in plain view, as long as the officer is in a place where she is entitled to be. And, even assuming that the admission of the photographs was erroneous, the father has failed to show that he was harmed thereby in light of the remaining evidence supporting the juvenile court’s determination that the children were deprived. Thus, this enumeration presents no basis for reversal.

3. The father contends that the juvenile court erred by finding that the Department used reasonable efforts to avoid removal of the children from the father’s home. OCGA § 15-11-58 (a) requires the Department to make reasonable efforts to prevent or eliminate the need for removal of a child from his or her home. Nevertheless, the statute also specifically provides that such reasonable efforts are not required if the juvenile court has determined that the parent subjected the children to chronic abuse or sexual abuse or “[committed a felony assault that results in serious bodily injury to the child. . . .” Given the trial court’s conclusion that the father physically abused R. C. H. and sexually abused R. E. H., we discern no error.

Decided February 9, 2011.

Jana L. Evans, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Joseph T. Justice, for appellee.

4. In his final enumeration, the father argues that the juvenile court erred by refusing to allow his lawyer to obtain a copy of the recorded forensic interviews of the children, “making it impossible for the [fjather to adequately prepare to address said evidence at trial.”

The juvenile court held initial hearings in this case on February 22, 2010, and February 23, 2010. On March 1, 2010, the father’s counsel verbally requested that the juvenile court direct the Department to provide him with a copy of the recorded interviews of the children. In response, the Department argued that even though the father had not engaged in the discovery process, it would permit the father’s counsel to view the taped interviews, but declined to give him a copy of the tapes, citing privacy concerns for the children. In a subsequent order, the juvenile court denied the father’s request for copies of the tapes, finding, inter alia, that he had waived his right thereto pursuant to Uniform Juvenile Court Rules 7.1 and 7.3. The juvenile court noted, however, that the father “has seen the video several times” and ordered that notwithstanding counsel’s failure to make such a request, the tapes “shall be made available for showing to the Respondent/Father at any time the court is open.”

Pretermitting whether the father has a right to a copy of the videotapes and whether he waived any such right, the father has failed to show any harm resulting from the denial of his request for copies, given the evidence that he had viewed them multiple times and had unfettered access to view the tapes at any time the court was open. “Without harm, an alleged error presents no basis for reversal.”

Judgments affirmed.

Ellington, C. J., and Andrews, J., concur.

       The father appeals the deprivation order as to R. C. H. in Case No. A10A2215 and the order as to R. E. H. in Case No. A10A2216. We consolidate the appeals for purposes of this opinion. The children’s mother, who left the family when R. C. H. and R. E. H. were six months old and two years old, respectively, is not a party to these appeals.

       (Citation and punctuation omitted.) In the Interest of T. V., 302 Ga. App. 124 (690 SE2d 457) (2010).

       According to the investigator, the father “was walking away from me backwards. He was telling the kids to get back in the shed. He wasn’t being very open or forthcoming. ... [H]e didn’t have a very nice demeanor about him. So I was getting frustrated!,] and I said, ‘[Y]es, I’m done for now.’ ”

       Recordings of the forensic interviews were played for the juvenile court.

       The children received vaccinations at a health clinic.

       (Punctuation omitted.) In the Interest of V. A. D., 305 Ga. App. 23, 26 (699 SE2d 346) (2010).

        In the Interest of M. K., 288 Ga. App. 71, 73 (1) (653 SE2d 354) (2007).

       (Punctuation omitted.) Id.

       See id.; In the Interest of T. R., 284 Ga. App. 742, 743-744 (644 SE2d 880) (2007); In the Interest of C. N., 231 Ga. App. 639, 640 (1) (500 SE2d 400) (1998).

       See In the Interest of T. V, 302 Ga. App. at 127 (1).

       (Punctuation omitted.) State v. Delvechio, 301 Ga. App. 560, 562 (687 SE2d 845) (2009).

       See Lord v. State, 297 Ga. App. 88, 92 (1) (a) (676 SE2d 404) (2009).

       See In the Interest of T. J., 281 Ga. App. 673, 676 (2) (637 SE2d 75) (2006).

       OCGA § 15-11-58 (a) (4) (A), (B) (v).

       See In the Interest of A. B., 289 Ga. App. 655, 657 (2) (658 SE2d 205) (2008).

       The Department also noted that the father had criminal charges pending against him and could presumably obtain a copy of the tapes from the State during the discovery process.

       (Punctuation omitted.) In the Interest of J. H., 273 Ga. App. 424, 427 (615 SE2d 231) (2005).


author: MILLER, Presiding Judge.

text:
    A10A1633.
    WILLIAMS v. THE STATE.
    (706 SE2d 82)
   MILLER, Presiding Judge.

Ezekiel Williams, Jr., entered a negotiated plea of guilty to one count of felony theft by shoplifting (OCGA § 16-8-14 (b) (3)). He now appeals from the trial court’s order denying his motion to withdraw guilty plea, arguing manifest injustice arising out of claims of ineffective assistance of counsel. Discerning no error, we affirm.

Once a sentence has been entered, a guilty plea may be withdrawn “only to correct a manifest injustice.” (Punctuation and footnote omitted.) Skinner v. State, 297 Ga. App. 828, 828-829 (678 SE2d 526) (2009). Where, as here, the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that he would have insisted on a trial. Harden v. Johnson, 280 Ga. 464 (629 SE2d 259) (2006).

A court need not address both the deficient performance and prejudice prongs of this test if the showing on one prong is insufficient. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Punctuation and footnotes omitted.) Navarrette v. State, 298 Ga. App. 637 (680 SE2d 649) (2009).

The record shows that on May 14, 2009, Williams pled guilty to felony shoplifting, as above, at a negotiated plea hearing upon evidence which showed that while in a Best Buy store in November 2008, he concealed two Xbox game systems, valued at more than $300, in a box which was labeled as containing other items. Upon checking out, the store’s alarm went off. Police were called to the scene on the foregoing facts, and Williams’ arrest followed.

On appeal, Williams appears to challenge the effectiveness of trial counsel (see MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980) (enumeration of errors failing to clearly set out the errors “sought to be reviewed” shall be considered on appeal)), because counsel failed to cause the State to dismiss the indictment, failed to seek suppression of the State’s evidence for lack of an arrest warrant, and coerced him into pleading guilty by “threatening] him with his past” in advising him that being tried as a recidivist would expose him to a greater sentence.

Decided February 10, 2011.

a. Williams asserts that trial counsel should have obtained the dismissal of the charges against him, presumably by successfully pursuing a motion to dismiss the same. While Williams contends that counsel was ineffective on this ground, he sets forth no legal basis in support thereof. Neither does he argue how he was harmed thereby. “A mere conclusory allegation, without more, is insufficient to establish ineffective assistance of counsel.” Mora v. State, 295 Ga. App. 641, 647 (3) (a) (673 SE2d 23) (2009).

b. Williams claims that counsel was ineffective because he failed to challenge the State’s evidence on the ground that he had been arrested without a warrant. Warrantless arrests are permissible under Georgia law where, as here, the arresting officer had probable cause to make an arrest. OCGA § 17-4-20 (a). “[T]he failure to object to what is unobjectionable is not ineffective assistance of counsel. [Cit.]” Ethridge v. State, 283 Ga. App. 289, 291 (2) (641 SE2d 282) (2007).

c. Williams claims that trial counsel coerced his plea of guilty by advising him that he faced a greater sentence upon being tried and convicted as a recidivist. Plainly, advising a client of mandatory sentencing upon trial as a recidivist does not constitute deficient performance of counsel. And Williams does not satisfy his burden to show deficient performance by characterizing such an advisement as a threat. Weeks v. State, 260 Ga. App. 129, 132 (2) (578 SE2d 910) (2003). Further, Williams testified at the plea hearing that he had not been threatened to plead guilty, that he had carefully discussed his case with trial counsel, including the charges, his defenses, and the question of whether he should accept the State’s offer of a plea agreement or demand a jury trial. Under these circumstances, counsel advising Williams of his rights/concerns about a trial as a recidivist certainly does not constitute ineffective assistance of counsel. Harden, supra, 280 Ga. 464.

Given the foregoing, the trial court did not abuse its discretion in denying Williams’ motion to withdraw his guilty plea and did not err in finding that he failed to sustain his burden of proving that he received ineffective assistance of counsel. Navarrette, supra, 298 Ga. App. 637; Harden, supra, 280 Ga. 464.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A10A1652.
    WARE v. THE STATE.
    (706 SE2d 143)
   PHIPPS, Presiding Judge.

Darryl Ware, represented by appointed counsel, was tried by a jury and convicted of the robbery of a bank teller. Thereafter, he was appointed new counsel and pursued a motion for new trial, which was denied. On appeal, Ware contends that the trial court erred by rejecting his pretrial requests to replace his trial counsel and by rejecting, on motion for new trial, his claim of ineffective assistance of trial counsel. Because Ware has shown no reversible error, we affirm.

The trial evidence showed that at about noon on May 5, 2007, a person wearing no facial mask or hat entered a branch of the Bank of America and handed a teller a threatening note demanding money. The teller put cash into an envelope and handed it to the robber, who then left the branch. The bank’s surveillance cameras recorded the incident, including images of the robber’s face.

Moments later, police arrived at the scene. The robbed teller, together with the teller who had been working adjacent to her, provided an officer with a description of the robber, including race, gender, age, build, and facial shape. Also reported to the officer was that the robber’s head was bald. Soon thereafter, the police obtained from the bank video footage and still photographs depicting the robbery and used images therefrom to issue a be-on-the-look-out bulletin for the robber.

A police detective assigned to the case uncovered information that led to Ware becoming a suspect. Thus, the detective obtained photographs of Ware taken during 2004 and 2006, noting that the 2004 photo showed an indentation on Ware’s head similar to an indentation depicted on the photographs of the robber’s bald head. Thereafter, on May 14, 2007, the detective showed to the two tellers a photographic lineup that included Ware’s 2006 photo; both tellers selected Ware’s photo as that of the robber, and Ware was arrested for the crime.

At trial, the robbed teller again identified Ware as the perpetrator. The jurors were also shown surveillance footage of the robbery captured by the camera just above and behind the robbed teller. And they were shown still photographs of the robber’s face, taken while he stood at the teller’s counter grabbing the money envelope. Ware neither testified, nor called any witness.

1. We turn first to Ware’s contention that the trial court erred by rejecting his claim of ineffective assistance of trial counsel.

To prevail on such claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. A court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(a) Ware complains that his trial lawyer did not ask prospective jurors during voir dire: (i) whether they owned any Bank of America stock; (ii) whether they had accounts at Bank of America; and (iii) whether they were patrons of the particular branch of Bank of America robbed. However, Ware makes no assertion as to what answer(s) any prospective juror would have given, had he or she been asked any of those questions; nor does Ware make any assertion as to what significance any such answer would have had. And because, further, “[t]he record also does not show that any other prospective jurors were erroneously qualified or disqualified because of any actions that trial counsel took or failed to take,” no prejudice can be assigned to this alleged error by trial counsel.

(b) Ware asserts that his trial lawyer failed to adequately investigate his case. In particular, Ware claims that his lawyer did not fully investigate the crime scene, did not request funds for a private investigator to assist him in the investigation, did not investigate his alibi defense, did not interview defense witnesses, did not secure the presence of defense witnesses, did not investigate his (Ware’s) mental disability, and did not request funds for an identification expert to testify at trial about the unreliability of eyewitness identification. However, “[Ware] cannot show prejudice with regard to his assertions that counsel failed to fully investigate the case and call essential witnesses because he made no proffer as to what a thorough investigation would have uncovered or what the essential witnesses would have said.”

(c) Ware complains that his trial lawyer did not seek a mistrial when the prosecutor elicited on direct examination the following testimony from the police detective who investigated the case and procured the photographic lineup:

Q: Let me ask you this: You noted that you saw some type of indentation [on the head of the robber] on the bank photograph and on a photograph [of Ware] that you mentioned earlier. Did you notice the indentation from the person that was arrested?
A: Yes, I did.

Ware relies upon Grimes v. State, which reversed the appellant’s four robbery convictions because trial counsel had provided ineffective assistance by failing to object to witness testimony identifying the appellant as the man depicted in the photographs derived from the bank security videotapes. At least some of those photographs had been included in an FBI bulletin. And at trial, a detective who had investigated the case testified that “when I came in contact with [the appellant], having already seen the FBI bulletin, it was apparent that this was the individual from those cases.” Also, an accomplice in one of the robberies, who had pled guilty to that crime, testified, after examining photographs derived from bank surveillance videos of perpetrators of the other three robberies, that “there’s no doubt in my mind that that is [the appellant].” This court agreed with the appellant that trial counsel should have objected to the two witnesses’ identification testimony under the general rule that it is “improper to allow a witness to testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions.”

According to Ware, the cited testimony by the detective in this case, “though not as blatant, was still just as prejudicial” as that in Grimes. Given the evidence in the instant case, however, we cannot agree. The jury was presented evidence that, nine days after the robbery, both the robbed teller and the teller who had been working adjacent to her identified from a photographic lineup Ware’s photo as that of the man who had committed the crime. Furthermore, in this case, the robbed teller made an in-court identification of Ware as the perpetrator. In addition, jurors were shown video footage of the robber committing the crime, as well as still photographs of the robber’s face; and the record confirms that Ware was present in the courtroom during his trial. Under these circumstances, we conclude that Ware failed to demonstrate a reasonable probability that an objection or motion for mistrial related to the cited testimony by the detective would have changed the outcome of his trial.

2. Ware contends that the trial court erred in denying his pretrial requests for replacement of appointed counsel. He further cites as error the trial court’s denial of his requests without first conducting a hearing. Ware has failed to demonstrate any reversible error.

The record shows that before trial, Ware wrote letters to the trial judge stating his dissatisfaction with his lawyer, who Ware claimed was “not doing anything with [his] case.” Ware specified that his lawyer: (i) had not visited him during his seven months in jail; (ii) had not provided him with a copy of his discovery package and transcripts of preliminary court hearings, although he had requested these items two months earlier; and (iii) would not accept any of his collect calls, forcing him to make calls to his lawyer only by using a three-way telephone option. In addition, Ware named another lawyer that he wanted to represent him. The trial court issued an order summarily denying Ware’s request.

Ware wrote the trial judge another letter, pointing out that the court’s order provided no reason for denying his request for the appointment of his preferred counsel and asking the judge to reconsider the request. Ware wrote that his lawyer still was not keeping him informed about his case, had not tried to obtain “exculpatory and/or witness impeaching transcripts from preliminary hearings,” and had not interviewed him in seven months. Ware asserted that, given his lawyer’s lack of effort, he was not being zealously represented. The trial court again issued an order summarily denying Ware’s request.

(a) Ware has failed to show that refusing to appoint his preferred counsel to represent him was an abuse of discretion by the trial court.

An indigent defendant has no right to compel the trial court to appoint an attorney of his own choosing. The choice of appointed counsel is a matter governed by the trial court’s sound exercise of discretion and will not be disturbed on appeal unless [that discretion is] abused. However, when a defendant’s choice of counsel is supported by objective considerations favoring the appointment of the preferred counsel, and there are no countervailing considerations of comparable weight, it is an abuse of discretion to deny the defendant’s request to appoint the counsel of his preference.

Nothing in Ware’s letters provided any objective considerations favoring the appointment of his preferred counsel. And when Ware was asked at the hearing on motion for new trial why he had preferred in particular the lawyer named in his letters, Ware responded only that “I know [he] is a drug attorney, but I also know he’s a good attorney, too.” Thereupon, Ware was pressed, “Was this from personal prior experience of friends maybe?” Ware answered, “Just from people that I have met through jail.” He gave no additional testimony regarding his choice of appointed counsel. Ware’s scant testimony fell short of providing objective considerations favoring the appointment of his preferred counsel.

(b) In complaining that the trial court denied his requests without first conducting a hearing, Ware cites Heard v. State for this proposition:

When . . . the issue of the effectiveness of appointed counsel is raised, it would appear that the trial court, in order to insure that the defendant’s Sixth Amendment right has been and will continue to be afforded, should conduct a hearing as to the basis of the defendant’s motion for appointment of new counsel. An assertion of ineffectiveness is sufficient to invoke a ruling by the trial court, which ruling should be made after hearing from counsel. Thus, when the effectiveness of counsel is challenged, the Sixth Amendment requires more than a perfunctory, surface inquiry to determine the truth and scope of the allegations.

But Ware disregards Heard’s further instruction that a trial court’s error in refusing to conduct a hearing “can be cured by a post-trial hearing before the judge in the trial court. If on the basis of evidence introduced at such hearing the trial judge concludes that appellant was afforded ineffective assistance of counsel, it must order a new trial.”

Ware’s post-trial counsel raised the issue of ineffectiveness of trial counsel on motion for new trial. And, contrary to allegations in Ware’s letters, Ware’s trial lawyer testified at the new trial hearing that he met with Ware several times at the jail and that they also often spoke by telephone. The lawyer recounted that, after receiving the discovery materials, “we [he and Ware] went over it line by line” at the jail. The lawyer testified that he and Ware had worked together in formulating a defense, including consideration of an alibi defense, but Ware did not want to testify and had no witness to support such a defense. In fact, the lawyer recalled, Ware had not presented him with a witness for any defense. The lawyer testified that he also had prepared and pursued pretrial motions.

Ware testified that his trial lawyer gave him the discovery materials the day of jury selection, which was the day before his trial started. Ware also testified that his alibi witness was his girlfriend, but that neither he nor his lawyer would have been able to get in touch with her because she “live[d] on the streets” and had no cell phone. When Ware was asked whether he had given his lawyer the name of any other potential witness, Ware answered, “I think I did,” but named no one. Ware’s sister testified at the new trial hearing that Ware and one of his brothers looked very much alike, but Ware conceded at the new trial hearing that he had not told his lawyer about that brother. Ware also acknowledged that his lawyer had accepted collect calls from him.

DeCided February 10, 2011.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

Here, the post-trial hearing cured any error by the trial court in refusing to conduct a pretrial hearing as to the basis of Ware’s request for appointment of new counsel. The record reveals that Ware failed to demonstrate that he was deprived of effective assistance of counsel; consequently, no new trial is warranted.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnote omitted).

        Franks v. State, 278 Ga. 246, 259 (2) (B) (4) (599 SE2d 134) (2004); see Rickman v. State, 277 Ga. 277, 280-281 (3) (587 SE2d 596) (2003).

        Domingues v. State, 277 Ga. 373, 374 (2) (589 SE2d 102) (2003) (citation omitted); see Pringle v. State, 281 Ga. App. 235, 238-239 (2) (a) (635 SE2d 839) (2006) (absent proffer of what the testimony of an expert would have been at trial, defendant cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel hired an expert).

       291 Ga. App. 585 (662 SE2d 346) (2008).

       See id. at 589 (2).

       Id. at 590 (2), n. 8.

       Id. at 590 (2) (punctuation omitted).

       Id. at 587.

       Id. at 590 (2) (punctuation omitted).

       Id. (punctuation and footnote omitted).

       Cf. Grimes, supra at 592-593 (2) (apart from inadmissible identification testimony, evidence that defendant was man depicted in robbery photographs was not strong, where, among other things, one such identification witness was significantly impeached, no victim made an in-court identification of defendant, and an eyewitness to one of the robberies testified that “it doesn’t look like [the defendant] . . . the build was not like that”).

        Strickland, supra.

        Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991) (citations omitted; emphasis supplied); see Chapel v. State, 264 Ga. 267, 268 (2) (443 SE2d 271) (1994).

       Compare, e.g., Chapel, supra at 268 (3) (a) (noting that the appellant cited the following objective considerations: the preferred lawyer had represented appellant as retained counsel for about five months before being appointed, during which time he “pursued an aggressive motions practice”; during his representation of appellant, both as retained and appointed counsel, lawyer and client had developed a relationship of trust and confidence essential to effective criminal representation; a death penalty case requires special skill and knowledge and the preferred lawyer was one of only nine attorneys in the county both qualified and willing to accept appointed death penalty cases; and the preferred lawyer had “foregone further lucrative employment with [the county] in order to defend the accused”); Davis, supra (defendant’s choice of two attorneys was supported by several weighty considerations, including that the attorneys were already familiar with the legally and factually complex case and the two attorneys had a long-standing relationship with the defendant, who they contended was in a fragile state of mental health).

       173 Ga. App. 543 (327 SE2d 767) (1985).

       Id. at 544-545 (1) (citations and punctuation omitted).

       Id. at 546 (1) (citation and punctuation omitted).

       To the extent the accounts of Ware and his trial lawyer differ, credibility determinations are within the province of the trial court, and we accept those determinations unless they are clearly erroneous. See generally Espinosa, supra.

        Heard, supra.


text:
    A10A1990.
    LOVELADY v. THE STATE.
    (706 SE2d 148)
   PHIPPS, Presiding Judge.

After a jury trial, Thomas Alan Lovelady was convicted of armed robbery. On appeal, he argues that the court erred in denying his motion to exclude evidence of witnesses’ pre-trial identifications of him. Finding no error, we affirm.

Testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”

If the court does not find an identification procedure impermissibly suggestive, it need not reach the issue of whether there was a substantial likelihood of misidentification. In reviewing the court’s denial of Lovelady’s motion, we construe the evidence most favorably to upholding the court’s findings and judgment.

The robbery occurred on June 23, 2007. Between 3:00 and 3:30 a.m. that day, a supermarket manager observed a man acting suspiciously in the store. Eventually the man left the supermarket. At around 4:00 a.m., the manager of a convenience store across the street from the supermarket was unlocking the store doors when she saw a man walking in a lit parking lot outside the convenience store. Shortly thereafter, while the manager was in her office, she heard someone enter the store. She left her office, walked toward the cash register, and saw a man wearing a ski mask and holding a gun. He was wearing what appeared to be the same shirt as the one worn by the man she had seen earlier in the parking lot. The man demanded money, which the manager gave him from the register. He then turned and ran out of the store.

Two days later, police investigating the armed robbery showed the convenience store manager an array of eight photographs of men, including a photograph of Lovelady. From that array, the witness identified Lovelady as the robber. Later that week, the supermarket manager also identified Lovelady as one of two people in the array who resembled the man he saw in the supermarket shortly before the robbery.

Lovelady argues that the court should have excluded evidence of these witnesses’ identifications because differences between his photograph and the other photographs in the array rendered the array impermissibly suggestive. He asserts that his head was positioned slightly lower in his photograph, that some of the men in the photographs (including him) had light goatees while others had no facial hair, and that some of the men in the photographs had hair that was somewhat darker or longer than his. We cannot conclude, however, that these distinctions “created the kind of suggestiveness that would lead the viewer inexorably to conclude that [Lovelady] was the suspect.” Although Lovelady presented expert opinion testimony challenging these aspects of the array, the trial court was not obligated to accept this testimony. Moreover, Lovelady has failed to show any other action by police that would have led the witnesses to single him out in the array.

Decided February 10, 2011.

Steven A. Miller, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Our review of the record, including the photo [graphic] array. .. , leads us to conclude that the trial court was authorized to find that there was no impermissible suggestiveness. Accordingly, the trial court did not abuse its discretion by denying the motion to suppress [the witnesses’] pre-trial identification of [Lovelady].

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d 249) (2009) (citation and punctuation omitted).

       Id.

        Karim v. State, 244 Ga. App. 282, 283-284 (2) (535 SE2d 296) (2000).

        Karim, supra at 286; see Clark v. State, 279 Ga. 243, 245 (4) (611 SE2d 38) (2005) (finding existence of some variation among 14 photographs in array did not cause array to be impermissibly suggestive); Williams v. State, 275 Ga. 622, 623 (2) (571 SE2d 385) (2002) (finding slight differences between defendant’s facial hair, the hair on his head, and the darkness of the background in his photograph did not cause photographic array to be impermissibly suggestive); Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999) (finding neither difference in height nor lack of facial hair on most of the lineup participants made the lineup impermissibly suggestive).

       See State v. Lynch, 286 Ga. 98, 101 (1) (686 SE2d 244) (2009) (court as factfinder on motion to suppress is not under obligation to believe a witness, even in the absence of contradictory testimony).

       See Davis, supra at 77. Compare Graham v. State, 273 Ga. App. 187, 188 (1) (a) (614 SE2d 815) (2005) (finding pre-trial identification impermissibly suggestive where officers informed witness that they believed witness had made the right choice among photographs in array).

        Davis, supra at 77 (citation omitted).


author: McFadden, Judge.

text:
    A11A0071.
    LONG v. LONG.
    (706 SE2d 152)
   McFadden, Judge.

In a prior appeal of this case, Long v. Long, 303 Ga. App. 215 (692 SE2d 811) (2010), this court affirmed in part and reversed in part certain orders of the Burke County Superior Court pertaining to child custody and visitation. Upon return of the remittitur, the lower court refused to carry this court’s decision into effect and instead entered an order declaring our decision to be void and “ declining] to make the decision of the Court of Appeals the judgment of [the trial] court.” Christine Long, the appellant in the prior appeal, again appeals. Again we reverse.

Decided February 10, 2011.

John R. B. Long, for appellant.

Ashley Wright, District Attorney, Kristina G. Connell, Assistant District Attorney, Glover & Blount, Gary A. Glover, Jerry M. Daniel, Edward J. Flythe, for appellee.

After the remittitur is transmitted to the trial court by the appellate court, “[t]he decision and direction [of the appellate court] shall be respected and carried into full effect in good faith by the court below.” OCGA § 5-6-10. “[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h). A “trial court. . . cannot decide to disregard the opinions of this court. [Cits.]” Eastgate Assoc. v. Piggly Wiggly Southern, 200 Ga. App. 872, 873 (1) (410 SE2d 129) (1991). “[W]hen a judgment is reversed and the case is remanded to the trial court with direction, it is the duty of the trial court in good faith to carry into full effect the mandate of this court.” (Punctuation omitted.) Leon v. Monterrey Mexican Restaurant of Wise, 305 Ga. App. 222, 223 (1) (699 SE2d 423) (2010).

The trial court disregarded this duty and committed grave error by refusing to give full effect to the binding decision of this court. “Accordingly, the order of the trial court must be reversed and the trial court [is hereby] directed to render judgment... in accordance with the holdings in [Long v. Long, supra].Eastgate Assoc., supra at 875 (1).

Judgment reversed.

Phipps, P. J., and Andrews, J., concur.


author: McFADDEN, Judge.

text:
    A11A0074.
    JOHNSON v. THE STATE.
    (706 SE2d 150)
   McFADDEN, Judge.

After a jury trial, Paul Johnson was convicted of aggravated assault. Johnson appeals, arguing that the trial court erred in allowing the state to impeach him with evidence of his prior felony convictions. We do find that, in deciding to admit that evidence, the trial court did not apply the standard mandated by the controlling statute. But the error was harmless, as the evidence of Johnson’s guilt was overwhelming.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. [Cit.]” Abercrombie v. State, 297 Ga. App. 522, 522-523 (677 SE2d 719) (2009). Viewed in that light, the evidence shows that both Johnson and Demetrius Lane were dating Kenbernika Little. On July 25, 2007, Lane was playing a video game in a bedroom inside Little’s mobile home when Johnson arrived on the front porch, brandishing two knives and yelling to be let in the home. Little refused to let him in, but went out to speak to him on the front porch. Johnson argued with Little about her relationship with Lane, then forced his way into the home. Johnson found Lane in the bedroom and attacked him. Johnson stabbed Lane multiple times with the knives, inflicting six life-threatening puncture wounds to his torso and a collapsed lung. Johnson fled from the scene, and police officers later discovered him hiding in a bedroom closet at his house. The blood-stained knives were also found hidden in Johnson’s bedroom.

Johnson was the only witness for the defense. He admitted that he stabbed Lane, but claimed that he did so only after Lane attacked him with a knife. On cross-examination, the state was allowed to impeach Johnson’s credibility by introducing certified copies of his convictions in 2000 and 2002 for aggravated assault, terroristic threats and possession of a firearm by a convicted felon.

Such evidence is admissible if its probative value substantially outweighs its prejudice to the defendant. As OCGA § 24-9-84.1 (a) (2) provides:

Evidence that the defendant 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 defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant. . . .

The preceding subsection of that statute, which addresses evidence of witnesses’ prior convictions, sets a lower standard. As to witnesses, the word “substantially” is omitted; they can be impeached with prior-conviction evidence as long as “the probative value of admitting the evidence outweighs its prejudicial effect to the witness.” OCGA § 24-9-84.1 (a) (1).

To ensure a meaningful analysis of the relevant factors, the trial court is required to make express findings when balancing the probative value and the prejudicial effect of such evidence. Lawrence v. State, 305 Ga. App. 199, 202 (3) (699 SE2d 406) (2010); Abercrombie, supra at 524 (1). “Factors to be considered include the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility. [Cit.]” Quiroz v. State, 291 Ga. App. 423, 428 (4) (662 SE2d 235) (2008).

Here, the trial court properly noted the kinds of felonies involved, but then ruled: “The Court does find that the probative value in this case outweighs the prejudicial value.” Omitting the word “substantially” was error. As this court recently held, admitting evidence of a defendant’s prior convictions based on such a ruling is error because it applies a less stringent standard than that required by OCGA § 24-9-84.1 (a) (2).

We must. . . assume that the legislature, in using the word “substantially” in OCGA § 24-9-84.1 (a) (2) for the impeachment of a defendant, intended to create a standard different from that provided in OCGA § 24-9-84.1 (a) (1) for the impeachment of a witness. In subsection (a) (1), the word “substantially” is omitted, and the court is only required to determine whether the probative value of the prior conviction outweighs its prejudicial effect. Here, the court found that the probative value of [the defendant’s] prior convictions outweighed the prejudicial effect. [However], the trial court was not authorized to admit evidence using a more liberal standard than that provided by OCGA § 24-9-84.1 (a) (2). Although the court made a finding of the admissibility of the prior convictions, it failed to do so under the proper standard.

(Citation and punctuation omitted.) Lawrence, supra at 202-203 (3).

But such an error does not require a new trial if the error is harmless. Lawrence, supra at 202-203 (3). The error is harmless here, because the evidence is overwhelming. It is undisputed that Johnson repeatedly stabbed the victim, inflicting life-threatening injuries. Johnson claimed that Lane first attacked him with a knife, but that claim was unsupported by other evidence and was directly contradicted by three other witnesses — all of whom testified that Lane was unarmed and that Johnson initiated the knife attack without any provocation. Given that testimony, as well as Johnson’s flight from the scene and his attempt to hide himself and the assault weapons from the police, the overwhelming evidence establishes Johnson’s guilt so as to make harmless the error in admitting the prior-convictions evidence. Id. at 203 (3).

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.

Decided February 10, 2011.

Timothy L. Eidson, Rashawn D. Clark, for appellant.

Denise D. Fachini, District Attorney, Barbara A. Becraft, Henry O. Jones III, Assistant District Attorneys, for appellee.


text:
    A11A0113.
    BULLARD v. THE STATE.
    (706 SE2d 154)

   McFADDEN, Judge.

Michael L. Bullard pled guilty in September 2009 to two counts of incest, two counts of sexual exploitation of children, and one count of possessing cocaine. The following month, Bullard moved to withdraw his plea, and the trial court denied the motion. Bullard appeals. He argues that plea counsel was deficient in failing to move to suppress evidence seized pursuant to a search warrant which he claims lacked a sufficient description of the items to be seized and was therefore invalid; but the evidence of record does not support his claim. He further argues that the trial court improperly allocated the burden of proof with respect to his motion to withdraw, but he fails to support that argument. We therefore affirm.

The record shows that in August 2008, Bullard’s seventeen-year-old stepdaughter reported to authorities that she had been sexually abused by Bullard on multiple occasions over a two-year period. She also indicated that Bullard had videotaped their encounters. Police obtained a search warrant for Bullard’s residence, and the search produced the video camera described by the victim, camera equipment, videotapes showing sexual intercourse between Bullard and the victim, and bags containing cocaine and marijuana.

Bullard was charged with thirteen sex offenses and two drug offenses. He admitted to having sexual relations with his stepdaughter, and shortly before trial, he entered plea negotiations with the State. As a result of those negotiations, Bullard pled guilty to five of the fifteen counts, and the State nolle prossed the remaining charges. The trial court sentenced Bullard to a total of twenty years, with eight years to be served in confinement and the balance on probation.

A few weeks later, Bullard moved to withdraw his plea. He argued, among other things, that he had received ineffective assistance of counsel prior to the plea. Specifically, he cited defense counsel’s failure to file a motion to suppress evidence seized pursuant to the search warrant. According to Bullard, the warrant was invalid because it did not describe with particularity the evidence to be seized; and all evidence obtained during the search should therefore have been suppressed.

1. Once sentence is pronounced, withdrawal of a guilty plea will only be allowed “to correct a manifest injustice.” Murray v. State, 306 Ga. App. 106, 107 (701 SE2d 579) (2010). Such injustice may result from ineffective assistance of counsel. See id. To establish ineffective assistance, however, the defendant must demonstrate that his attorney’s performance was deficient and that, hut for the deficiency, he likely would not have pled guilty. Id. Moreover, when the ineffective assistance claim is based on counsel’s failure to file a motion to suppress, “the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Id.

Bullard cannot make this “strong showing” here. It is true that a search warrant must “particularly describe” the things to be seized during the search. Groh v. Ramirez, 540 U. S. 551, 557 (124 SC 1284, 157 LE2d 1068) (2004); see also OCGA § 17-5-23. But a warrant may meet this requirement by cross-referencing other included documents. See Groh, supra at 557-558. And in this case, the warrant states that the description of items to be seized is contained in “Exhibit C.”

Bullard argued below that “Exhibit C” was never attached to the warrant, rendering it invalid. He demonstrated, and the State conceded, that the copy of the warrant he received in discovery did not include “Exhibit C.” But he presented no evidence that the warrant actually signed by the magistrate in 2008 and used to execute the search lacked the exhibit. In fact, he did not offer any testimony or documentary evidence regarding the original warrant or its contents.

Given the state of the record, Bullard cannot demonstrate that evidence seized pursuant to the search warrant would have been excluded had defense counsel filed a motion to suppress. Simply put, he has not shown that the warrant was invalid. The trial court, therefore, properly denied his motion to withdraw on this ground. See Murray, supra.

2. Alternatively, Bullard argues that the trial court erroneously shifted the burden of proof to him at the hearing on his motion to withdraw. We disagree.

As recognized by the trial court, the State bore the burden of proving that Bullard knowingly and voluntarily entered his plea. See Sallins v. State, 289 Ga. App. 391, 392 (657 SE2d 309) (2008). To meet this burden, the State relied upon the transcript from Bullard’s guilty plea hearing, as it was entitled to do. See Boykins v. State, 298 Ga. App. 654, 655 (2) (680 SE2d 665) (2009) (State may meet burden by “demonstrating from the record of the guilty plea hearing that the defendant understood all of the rights he was waiving and the possible consequences of his plea”). No improper burden shifting occurred on this issue, and the trial court properly found that Bullard bore the burden of proof with respect to the ineffective assistance claim. See Sallins, supra. Accordingly, the trial court did not err in allocating the burden of proof.

Decided February 10, 2011.

Mack & Harris, Robert L. Mack, Jr., for appellant.

Tracy Graham-Law son, District Attorney, for appellee.

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.


author: SMITH, Presiding Judge.

text:
    A10A1644.
    CRISLER et al. v. HAUGABOOK et al.
    (706 SE2d 184)
   SMITH, Presiding Judge.

In the first appearance of this case, we reversed the trial court’s grant of summary judgment to the Crislers for money had and received, and directed the trial court to enter judgment in favor of Haugabook. Haugabook v. Crisler, 297 Ga. App. 428 (677 SE2d 355) (2009) (“Haugabook 7”). In this case, the Crislers appeal from the trial court’s award of prejudgment interest to Haugabook. We affirm.

In Haugabook I, an attorney falsely claimed that he had obtained a settlement for $1 million for his clients, the Crislers, when in fact he did almost nothing to pursue their wrongful death claim. Id. at 428-429. The attorney defrauded his father-in-law, Haugabook, into loaning him $1 million which he used in a check-kiting scheme to cover the $1 million wire transfer to the Crislers. Id. at 429-430. When the scheme was discovered, the Crislers refused to return the money. Id. at 430. Haugabook filed suit against the Crislers asserting several claims, including a claim for money had and received. Id. On cross-motions for summary judgment, the trial court held in favor of the Crislers. Id. at 430-431. We reversed, and instructed the trial court to enter summary judgment in favor of Haugabook holding that the Crislers received $1 million to which they were not entitled. Id. at 432-435.

Following the remittitur in Haugabook I, the trial court, on November 10, 2009, filed an order granting summary judgment to Haugabook as directed. On December 1, 2009, Haugabook amended his complaint making a prayer for prejudgment interest pursuant to OCGA § 7-4-15, and on December 7 filed a “Motion for Entry of Final Judgment Awarding Prejudgment Interest.” On February 9, 2010, the trial court entered a final judgment awarding Haugabook prejudgment interest at the legal rate provided in OCGA § 7-4-2 (a) (1) (A).

Decided February 11, 2011

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Jeffrey W. DeLoach, for appellants.

Davis & Melton, F. Gregory Melton, Jones, Cork & Miller, Howard J. Strickland, Jr., for appellees.

On appeal, the Crislers argue that because Haugabook made no prayer for prejudgment interest in his original complaint and subsequent amendments, and did not seek leave of court to amend his complaint after entry of summary judgment, the trial court erred in awarding him prejudgment interest. OCGA § 7-4-15 provides in part: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.” And we have consistently held that “[a]n award of prejudgment interest for liquidated damages is mandatory rather than discretionary and is awarded as a matter of law.” (Citation and footnote omitted.) Holloway v. State Farm Fire &c. Co., 245 Ga. App. 319, 322 (2) (537 SE2d 121) (2000); see In re Estate of Miraglia, 290 Ga. App. 28, 31 (2) (658 SE2d 777) (2008).

As there is no dispute that the award here was liquidated, the trial court did not err in awarding Haugabook prejudgment interest.

Judgment affirmed.

Mikell and Adams, JJ., concur.


author: Mikell, Judge.

text:
    A10A1960.
    BROWN v. THE STATE.
    (706 SE2d 170)
   Mikell, Judge.

Ryan Jerel Brown appeals from the order denying his motion for new trial following his conviction of armed robbery, aggravated assault, and possession of a weapon during the commission of a crime. Brown contends that the trial court erred by seating two jurors whom he had peremptorily struck, by denying his motions to suppress, by giving insufficient curative instructions when the prosecutor made improper comments during closing argument, and by denying his claim of ineffective assistance of counsel. Discerning no error, we affirm.

Although Brown does not challenge the sufficiency of the evidence to support his conviction, we recount it briefly for clarity. Construed most favorably in support of the verdict, the evidence shows that at 10:00 p.m. on February 6, 2008, Angelo Thomas Traficanti was withdrawing money from a drive-through Wachovia ATM on Jonesboro Road in Clayton County when a man appeared by his car window and pointed a gun at his face. The robber grabbed the money, $100 in $20 bills, and ordered Traficanti to withdraw an additional $200. The robber grabbed that money as well and then fled. Traficanti called 911 and described the robber as African-American, approximately six feet six to six feet eight inches tall, and reported that he was wearing a black and white bandanna covering his face, a black stocking hat, and black clothing. A police officer patrolling the area quickly spotted Brown jumping into his car, which was parked one building north of the Wachovia. After ordering Brown to exit his vehicle, the officer saw a black and white bandanna hanging out of Brown’s front pocket. Brown was detained, and Traficanti was brought to the scene. Traficanti identified Brown as the robber. The police arrested Brown and searched his car, finding $300 in $20 bills, a small caliber handgun, and a stocking cap. The robbery was captured on the bank’s surveillance camera, and photographs of the robber taking the victim’s money at gunpoint were introduced into evidence. This evidence is sufficient to support Brown’s conviction under the standard set forth in Jackson v. Virginia.

1. Brown first contends that the trial court erred in replacing two jurors on the jury panel. After Brown, who is African-American, used all of his peremptory strikes against Caucasian members of the venire, the state made a motion asserting that the defense had exercised its strikes in a racially discriminatory manner, as prohibited by Georgia v. McCollum. The trial court agreed as to two of the peremptorily-struck jurors and ordered them seated on the panel. We find no error.

A trial court must employ a three-step procedure when presented with a McCollum challenge. First, the court must decide whether the state has made out a prima facie case of racial discrimination.

Once a prima facie case is made, the [defense] is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike. ... It is then for the trial court to determine, after considering the totality of the circumstances, whether the [state] has shown that the [defense] was motivated by discriminatory intent in the exercise of the peremptory challenge. The [state] may carry its burden of persuasion by showing that similarly-situated members of another race were seated on the jury. A trial court may also determine that improper discriminatory motive underlay the exercise of a peremptory challenge when the race-neutral explanation proffered by the [defense] is so implausible or fantastic that it renders the explanation pretextual. The trial court’s findings concerning whether the [state] has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.

In the case at bar, the trial court properly followed the three-step process and did not clearly err in its findings. First, the court correctly found that the state made out a prima facie case of racial discrimination by showing that Brown used all of his peremptory challenges against Caucasian jurors. The court then shifted the burden of production to the defense to give race-neutral explanations for the strikes. Counsel stated that he struck juror 175 because his son had been the victim of a car theft and the thief was never arrested, so counsel believed that the juror might be biased in favor of the prosecution. Counsel explained that he struck juror 177 because that juror had been the foreperson on a criminal jury and counsel “didn’t want on too strong a personality.” After hearing these reasons, the trial court ruled that the burden of persuasion reverted to the state. Concerning juror 175, the state pointed out that Brown had not struck a juror whose tools were stolen from her truck. Regarding juror 177, the state noted that defense counsel did not strike another juror who had been a jury foreperson three times, although this juror had been the victim of a hate crime. Counsel admitted that he did not strike similarly-situated jurors. The trial court accepted defense counsel’s explanations for seven of the nine strikes. However, the court found that the state had carried its burden of persuasion regarding racial motivation as to jurors 175 and 177, and seated them on the jury.

Brown contends that the trial court’s choice of remedy violated his rights to a fair trial and an impartial jury because he had provided race-neutral explanations for the strikes. Even assuming arguendo that the reasons proffered by the defense were facially race-neutral, that does not end our inquiry, however, because “[i]n the situation in which a racially-neutral reason for the strike is given, the trial court must ultimately decide the credibility of such explanation.” Thus, “although a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three.” In its order denying Brown’s motion for new trial, the trial court clarified that it found the explanations pretextual after “reviewing the strikes, listening to the attorney’s purported reasons and observing his demeanor. This court also considered in assessing the veracity of the attorney in striking the jurors, that he failed to strike similarly situated jurors.” “[A] trial court’s determination of a McCollum challenge rests largely on assessing the attorney’s credibility and state of mind and therefore lies peculiarly within the province of the trial judge.” Accordingly, “where, as here, racially-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based.” Because the third step of the McCol-lum procedure requires the trial court to act as the trier of fact, its findings are entitled to great deference and will be affirmed unless clearly erroneous. Applying the appropriately deferential standard of review, we conclude that, under the totality of the circumstances, the trial court did not clearly err in finding that the state had shown that Brown was motivated by discriminatory intent in the exercise of the two peremptory strikes at issue.

Finally, we reject Brown’s contention that the trial court, having found the state’s McCollum challenge meritorious, erred by reseat-ing the affected jurors. The Supreme Court of Georgia has approved the practice of remedying Batson violations by reseating jurors who remain unaware of the party who struck them.

The prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant’s Sixth Amendment right to a trial by an impartial jury. When a [McCollum] challenge results in a finding that jury selection was not racially neutral and when, as here, the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant’s right to a fair and impartial jury.

Here, the order denying Brown’s motion for new trial reflects that the trial court used the silent strike method whereby the attorneys strike jurors by random numbers, so that the jurors remain unaware of the party who excused them. The trial court did not err in seating the two jurors at issue.

2. Brown enumerates as error the denial of his motion to suppress evidence obtained as a result of the warrantless search of his vehicle. Brown asserts that the search was illegal because the arrest from which it flowed was not supported by probable cause. We disagree.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

So viewed, the evidence adduced at the suppression hearing shows that, on the night of the robbery, Forest Park Police Officer Stephen Geeslin heard the dispatcher’s report of an armed robbery at Wachovia and responded to the scene within 30 seconds. Geeslin testified that the dispatcher reported, among other things, that the robber had fled on foot toward a storage facility. Geeslin proceeded to the Forest Park Shopping Center because of its proximity to the storage facility. The dispatcher reported that the suspect was wearing black clothing, including a black stocking cap and black bandanna imprinted with white designs.

Geeslin approached the shopping center with his vehicle “blacked out,” meaning without illumination, and observed a male matching the description come from behind a building and quickly get into a car. Geeslin pulled up behind the car, turned on his spotlight, and ordered Brown to get out. Brown was dressed in black clothing and a black and white bandanna was hanging out of his pocket. According to Geeslin, officer Larry McAllister, who was with the victim, reported that Brown was armed with a small handgun, and confirmed the description of his clothing.

Backup arrived to assist Geeslin, and Brown was detained. Geeslin asked what Brown was doing behind the building, and Brown stated that he “needed to take a piss.” McAllister brought the victim to Geeslin’s location, and the victim identified Brown as the robber. Brown was placed under arrest. The trial court ruled that the police had probable cause to arrest Brown.

Brown complains that, because McAllister did not testify at the hearing, any information he may have relayed to dispatch or to Geeslin was hearsay and was inadmissible to establish probable cause. This contention is meritless. Probable cause “can rest upon the collective knowledge of the police when there is some degree of communication between them.” Moreover, “[o]fficers are entitled to rely on information provided by other officers or by their dispatcher when asked to be on the lookout for a certain vehicle or suspects. There is no requirement that the officer or officers providing the information testify at the motion to suppress [hearing].”

Whether the arrest was constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person suspected had committed or was committing an offense.

In the case at bar, the trial court found that within a very short time after the robbery occurred, Geeslin saw a person who matched the robber’s physical description, wearing the clothing described by the victim, traveling on foot in the direction in which the victim indicated he would be walking, and quickly entering a vehicle in the shopping center closest to the scene of the crime. Geeslin was informed by McAllister, who brought the victim to the scene, that the victim identified Brown as the robber. The trial court’s findings concerning the existence of probable cause were not clearly erroneous, and Brown’s motion to suppress was properly denied.

3. Brown further contends that the identification on which the trial court relied in finding probable cause was improperly admitted in evidence. In a related enumeration of error, Brown argues that the trial court erred by hearing the motion to suppress evidence prior to hearing his motion to suppress the identification. Brown has waived these contentions, however.

At the hearing on the motion to suppress evidence, Geeslin testified on cross-examination concerning the descriptions of the suspect’s clothing that were relayed from the dispatcher and from McAllister. Geeslin also testified that Brown was not placed under arrest for armed robbery until after the victim identified him. Brown then asked Geeslin, “you could have taken him down to the station and actually put him in front of a lineup if you wanted to, correct?” Geeslin responded, “[a] lineup for what?” The trial court commented: “That’s the I.D. that we’re going to hear immediately prior [to] trial.” Brown responded, “I agree, Your Honor, I understand.” Next, at the conclusion of the hearing on Brown’s motion to suppress the identification, his counsel conceded that “there was no problem with the way the identification .. . was presented.”

By his acquiescence, Brown has waived any purported error regarding the admission of identification evidence or the scheduling of the suppression hearings. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.”

4. Brown argues that he was denied the right to fair trial due to prosecutorial misconduct during closing argument, in violation of OCGA § 17-8-75. He further contends that the prosecutor improperly commented upon his right to remain silent. These contentions have been waived by Brown’s failure to assert them at trial.

During closing argument, the prosecutor stated that “there is no evidence to refute the fact that there was a robbery at the Wachovia Bank. . . . [T]here’s no disputing that . . . there was a gun found in the car. There’s a presumption in Georgia that if you are the driver of a vehicle you own everything in that car.” The trial court, sua sponte, interjected: “That law will not be given to the jury in this case. It’s not found to be appropriate and therefore you cannot argue law that will not be given by the court to the jury.” When the prosecutor resumed, she argued: “So when this gun was found was any explanation given? No. Any explanation at all? No. He just happened to have $300, all in twenties, a bandanna that matches the description, a cap, and a gun.” This time, the trial court rebuked the prosecutor at length and gave the jury curative instructions.

In Mallory v. State, our Supreme Court held that a comment upon a defendant’s silence or failure to come forward “will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Brown contends that the trial court’s rebuke to the prosecutor and its instructions to the jury were insufficient corrective measures. However, Brown did not object to closing argument, move for a mistrial, or except to the trial court’s curative measures. Brown has thus waived this issue.

5. Lastly, Brown argues that the trial court erred in denying his motion for new trial on the basis of ineffective assistance of trial counsel. He asserts that trial counsel’s performance was deficient in eight respects and that these deficiencies prejudiced him.

In order to prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy either prong of this test is fatal to an ineffectiveness claim. Moreover, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. We defer to the trial court’s factual findings on this issue unless they are clearly erroneous, while we independently apply the legal principles to the facts. Finally, we will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.

(a) Brown contends that trial counsel was ineffective in failing to move for a mistrial when the prosecutor improperly commented upon his right to remain silent. This argument fails, because the trial court’s instructions were sufficient to cure any prejudice to Brown. “Where an instruction by the trial court would cure any unfair prejudice to the defendant, a mistrial is not essential to the preservation of the right to a fair trial.” At the new trial hearing, trial counsel explained his reasons for not seeking a mistrial, and Brown “has not shown either that counsel’s tactical decision not to move for a mistrial was outside the range of reasonably effective assistance or that a mistrial would have been granted but for counsel’s decision to forego requesting one.”

(b) Brown alleges that trial counsel was ineffective in failing to object to leading questions asked by the prosecutor. Trial counsel testified that he elected not to object to leading questions because they were not harmful. “[Decisions as to whether to interpose certain objections fall within the realm of trial tactics and strategy and usually provide no basis for reversal of a conviction, nor do they amount to ineffective assistance of counsel.”

(c) Brown argues that the one-on-one showup procedure was impermissibly suggestive and that, as a result, trial counsel was ineffective for “abandoning” the motion to suppress identification. Pretermitting whether the showup procedure was impermissibly suggestive, we conclude that trial counsel’s decision not to challenge the procedure was reasonable trial strategy. At the hearing on the motion to suppress, the victim testified that he could not identify Brown’s face because he had been wearing a mask, and that he identified Brown at the scene by his clothing and his height. At the hearing on the motion for new trial, trial counsel explained that he did not argue that the identification procedure was impermissibly suggestive because the victim testified that he was unsure that Brown was the person who robbed him. “Review of counsel’s performance must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them.” We conclude that counsel’s tactical decision fell within the wide range of reasonable, professional conduct.

Brown further complains that his trial counsel should have cross-examined the victim more strenuously on this issue. “The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Here, the victim’s identification testimony at trial was weak. He testified that he could not be certain that the person he identified on the night of the robbery was Brown. Trial counsel elicited on cross that the victim “may have been wrong” about the color of the bandanna Brown wore. Brown has failed to show what favorable evidence could have been elicited from the victim by any different cross-examination. Accordingly, Brown has failed to meet his burden of showing deficient performance and prejudice from his counsel’s actions.

(d) Brown contends that trial counsel was ineffective for failing to object to the introduction of photographs of currency and bank video surveillance where no foundation was laid. Trial counsel testified that he made a strategic decision not to require the state to bring in authenticating witnesses because he had verified the authenticity of the photographs prior to trial. Moreover, counsel was aware of additional damaging evidence in Wachovia’s possession and was concerned that the state might seek to introduce it if a witness testified for the bank. “The matter of when and how to raise objections is generally a matter of trial strategy. Here, it cannot be said that trial counsel’s decision to forego objection was a professionally unreasonable choice.”

Decided February 11, 2011.

Davis Bozeman, Tawanna K. Morgan, for appellant.

Tracy Graham-Lawson, District Attorney, Caroline C. Owings, Assistant District Attorney, for appellee.

(e) Brown complains that trial counsel was ineffective for failing to challenge hearsay testimony during the hearing on his motion to suppress evidence. Any such objection would have been futile, however, because the testimony at issue was properly admitted under the collective knowledge rule. See Division 2. “Since any objection trial counsel could have made would have been meritless and failure to make a meritless objection cannot be evidence of ineffective assistance, [Brown’s] claim of ineffectiveness fails.”

(f) Brown’s three remaining allegations of ineffectiveness are not supported by argument or citation to authority and are hereby waived.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       505 U. S. 42, 59 (IV) (112 SC 2348, 120 LE2d 33) (1992); accord Allen v. State, 280 Ga. 678, 680 (2) (b) (631 SE2d 699) (2006).

        Thomas v. State, 299 Ga. App. 235, 236 (682 SE2d 325) (2009).

       Id.

       (Citations and punctuation omitted.) Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996); accord Demery v. State, 287 Ga. 805, 808 (2) (700 SE2d 373) (2010).

        Rose v. State, 287 Ga. 238, 240 (2) (695 SE2d 261) (2010); Tillman v. State, 240 Ga. App. 78-79 (1) (522 SE2d 557) (1999).

        Thomas, supra.

       Counsel argued at trial that the similarly-situated jurors whom he did not strike were Caucasian, so his decision to exercise peremptory strikes against jurors 175 and 177 was not racially motivated. This argument has not been raised on appeal, however, so we do not consider it. Moreover, voir dire was not transcribed, and the racial makeup of the similarly-situated jurors was not stated on the record, so we would have no method by which to evaluate it. See Bass v. State, 271 Ga. App. 228, 233 (4) (609 SE2d 386) (2006).

         (Citation omitted.) Stokes v. State, 281 Ga. 825, 829 (3) (642 SE2d 82) (2007).

       (Emphasis in original.) McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997).

       (Punctuation and footnote omitted.) Hicks v. State, 281 Ga. App. 217, 219 (2) (635 SE2d 830) (2006).

       (Citation and punctuation omitted.) Smith v. State, 264 Ga. 449, 454 (4) (448 SE2d 179) (1994).

        Stokes, supra.

       See McKee v. State, 277 Ga. 577, 581 (8) (591 SE2d 814) (2004) (McCollum challenge sustained where defense had not struck several other venire persons who were crime victims).

       (Citations and punctuation omitted.) Holmes v. State, 273 Ga. 644, 646 (2) (543 SE2d 688) (2001).

       (Citation omitted.) Solis v. State, 268 Ga. App. 493, 494 (1) (602 SE2d 166) (2004).

        Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996), citing Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985).

       (Citations omitted.) Edmond v. State, 297 Ga. App. 238, 239 (676 SE2d 877) (2009).

       (Citation and punctuation omitted.) Self v. State, 245 Ga. App. 270, 274 (3) (b) (537 SE2d 723) (2000).

       See Davis v. State, 304 Ga. App. 355, 358 (1) (a) (696 SE2d 381) (2010) (probable cause existed to arrest defendant based on witness’s description communicated to responding officers and fact that they found him near the scene of the shooting shortly after it occurred).

       (Punctuation and footnote omitted.) Garland v. State, 256 Ga. App. 313, 318 (6) (568 SE2d 540) (2002); accord Potter v. State, 301 Ga. App. 411, 416 (2) (687 SE2d 653) (2009) (acquiescence in procedure by which document was identified deprived defendant of right to complain on appeal); Hightower v. State, 205 Ga. App. 305, 308 (3) (422 SE2d 28) (1992) (acquiescence in voice identification procedure constituted waiver).

       OCGA § 17-8-75 provides:
      Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

       261 Ga. 625 (409 SE2d 839) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) (515 SE2d 155) (1999).

       Id. at 630 (5).

       See Landers v. State, 270 Ga. 189, 190-191 (2) (508 SE2d 637) (1998) (state improperly commented upon defendant’s silence during argument but error not preserved for appellate review due to counsel’s failure to object).

       (Punctuation and footnotes omitted.) Nichols v. State, 288 Ga. App. 118, 120-121 (3) (653 SE2d 300) (2007).

       (Footnote omitted.) Adams v. State, 300 Ga. App. 775, 776 (686 SE2d 390) (2009), citing Berryhill v. State, 285 Ga. 198, 203 (5) (674 SE2d 920) (2009) (where trial court gave an appropriate curative instruction, there was no abuse of discretion in denying the motion for mistrial).

       (Citation omitted.) Sweet v. State, 278 Ga. 320, 325 (8) (602 SE2d 603) (2004).

       (Citation and punctuation omitted.) Reynolds v. State, 269 Ga. App. 268, 271 (2) (603 SE2d 779) (2004).

       See, e.g., Miller v. State, 266 Ga. App. 378, 382 (1) (597 SE2d 475) (2004) (factors used to decide admissibility of showup identification).

       (Citation and punctuation omitted.) Buchanan v. State, 273 Ga. App. 174, 180 (2) (614 SE2d 786) (2005).

       (Citation and punctuation omitted.) Cooper v. State, 281 Ga. 760, 762 (4) (a) (642 SE2d 817) (2007).

       See Lawrence v. State, 286 Ga. 533, 534 (2) (690 SE2d 801) (2010).

       (Citations and punctuation omitted.) Robinson v. State, 278 Ga. 31, 36 (3) (c) (597 SE2d 386) (2004).

       (Punctuation and footnote omitted.) Kilgore v. State, 291 Ga. App. 892, 898 (3) (663 SE2d 302) (2008).

       See Mora v. State, 295 Ga. App. 641, 646 (3) (673 SE2d 23) (2009).