305 Ga. 658 FINAL COPY
S19A0457. COLEY v. THE STATE.
WARREN, Justice.
Christopher Lee Coley was convicted of malice murder in the
shooting death of John Adams. On appeal, Coley contends that the
evidence was insufficient to support his conviction; that the trial
court erred in denying his motion for a mistrial, in charging the jury
on party to a crime, and in allowing the alternate juror to sit in the
jury room during deliberations; and that his trial counsel was
ineffective. Finding no error, we affirm.1
1. Viewed in the light most favorable to the jury’s verdict,
1 The murder was committed around midnight on September 21, 2006.
On December 4, 2006, a Pulaski County grand jury indicted Coley for a single count of malice murder. At the conclusion of a trial held from December 11- 12, 2007, a jury found Coley guilty of malice murder. On December 12, 2007, the trial court sentenced Coley to life in prison. Coley filed a timely motion for new trial on January 4, 2008, which was later amended through new counsel on December 22, 2015. Following a December 20, 2016 hearing, the trial court denied the motion, as amended, on August 27, 2018. Coley filed a timely notice of appeal on August 30, 2018. The appeal was docketed in this Court to the term beginning in December 2018 and submitted for a decision on the briefs. the evidence presented at trial showed the following. On September
21, 2006, Coley and Marcus Lawson, who are cousins, spent much of
the day together. At one point that night, Coley showed Lawson a
loaded chrome and black gun. Shortly after that, Coley and Lawson
bought some marijuana and walked to a store to buy a cigar to use
for smoking the marijuana. The two were wearing dark clothing —
Lawson in a black and silver shirt, black pants, and black shoes, and
Coley in a black shirt and blue jeans — and bandanas, and Coley
also had a black t-shirt on his head. Lawson later testified that as
they were walking to the store around midnight, Coley saw someone
coming toward them, so Coley and Lawson got off the street and hid
in some bushes as they waited for the person to pass. The person
approaching was Adams.
Lawson testified that Adams turned around and started
walking in the opposite direction, and that Coley then ran up behind
him, prompting Adams to turn back around. According to Lawson,
Coley then pulled a gun. Lawson testified that he looked away, then
heard a gun cock and a shot. Lawson testified that he started to walk away, but that Coley ran up to him telling him to run; as they
ran, Coley said that he had shot Adams.
After Coley and Lawson fled the scene, they first hid behind a
nearby house for about 20 minutes. They left the gun there, along
with the bandanas each of them wore and the black t-shirt that had
been on Coley’s head. From there, the two went to an abandoned
house and hid until the next morning.
Lawson was arrested around noon the next day. He promptly
began helping the police, voluntarily telling them that Coley was the
shooter and leading them to the gun and clothes. He also helped
them locate Coley, who was arrested later that same day. Coley
initially told the police that he had no knowledge of the shooting, but
later stated that Lawson had been the shooter.2
In addition to Lawson’s testimony, other evidence was adduced
2 He made that audio-recorded statement after being arrested and advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). (The record indicates that at the time Coley became a suspect in Adams’s murder, Coley was already wanted for selling cocaine and for violating his probation, and that the police initially arrested him for those charges.). at trial. Near the house that Coley and Lawson first hid behind,
which Lawson led police to, investigators found two bandanas, a
black t-shirt, and a handgun. The handgun was a match for the
bullet that killed Adams. And the black t-shirt, which Lawson said
Coley had on his head, had Coley’s DNA on it. Coley also had a
bloodstain on the jeans that he was wearing at the time of his arrest
and which he admitted that he had been wearing at the time Adams
was shot, though there was not enough blood on the jeans to
generate a DNA profile. Additionally, in Coley’s statement to police,
he was able to describe details like what Adams had in his hands
and the positioning of Adams’s body as he fell, indicating to the
agent interviewing Coley “that he was pretty close to the victim” at
the time of the shooting. At trial, the medical examiner testified
that Adams died from a contact gunshot to the head, which entered
just below his left temple. And two witnesses who lived near the
scene testified that they saw two people “wearing dark clothing”
running through their yard around the time of the shooting,
prompting them to call 911. 2. Coley asserts that the evidence was insufficient to
support his conviction. Specifically, he asserts that the evidence was
vague and conflicting and that the testimony of Lawson — who was
Coley’s accomplice — was uncorroborated. Because there was at
least slight evidence corroborating Lawson’s accomplice testimony,
and because the evidence was otherwise sufficient to support Coley’s
conviction of malice murder, this enumeration fails.
In “felony cases where the only witness is an accomplice,” the
testimony of that single accomplice must be corroborated to sustain
a conviction. Former OCGA § 24-4-8; Bradshaw v. State, 296 Ga.
650, 653 (769 SE2d 892) (2015).3 “‘[S]ufficient corroborating
evidence may be circumstantial, it may be slight, and it need not of
itself be sufficient to warrant a conviction of the crime charged.’”
3 This case was tried in 2007 under Georgia’s old Evidence Code. We have
already explained that the old and new Code provisions on accomplice corroboration (former OCGA § 24-4-8 and current OCGA § 24-14-8) have the same meaning, because the language of former OCGA § 24-4-8 is “virtually identical” to new Evidence Code provision OCGA § 24-14-8; there is no provision of the Federal Rules of Evidence governing accomplice testimony; and the General Assembly clarified that it intended to retain substantive Georgia evidence law unless displaced by the new Evidence Code. Bradshaw, 296 Ga. at 653-654. Bradshaw, 296 Ga. at 654 (punctuation omitted) (quoting Threatt v.
State, 293 Ga. 549, 551 (748 SE2d 400) (2013)). That said, the
corroborating evidence must be
independent of the accomplice testimony and must
directly connect the defendant with the crime, or lead to
the inference that he is guilty. Slight evidence from an
extraneous source identifying the accused as a
participant in the criminal act is sufficient corroboration
of the accomplice to support a verdict.
Id. at 655 (punctuation omitted) (quoting Threatt, 293 Ga. at 551).
Coley argues that he was merely present when the crime
occurred. But there was more than slight, independent evidence
corroborating Lawson’s testimony that Coley was a participant in
Adams’s shooting. As an initial matter, Coley himself admitted to
being at the murder scene, after first lying about his presence there.
In addition, testing confirmed that the black t-shirt Lawson said
that Coley wore on his head during the shooting had Coley’s DNA
on it, and officers found that t-shirt in close proximity to the murder weapon. Moreover, two neighbors who lived near the location of the
shooting called 911 after they saw two people in dark clothing
running through their yard around the time of Adams’s murder.
Finally, the jeans that Coley was wearing when officers arrested
him, and which he admitted that he was wearing at the time Adams
was shot, had a bloodstain on them. This evidence corroborated
Lawson’s testimony that Coley was a participant in Adams’s
murder. See, e.g., Raines v. State, 304 Ga. 582, 588-589 (820 SE2d
679) (2018) (independent evidence — including defendant’s own
statement placing him at the scene and his description of the
murder, despite claiming he was a mere bystander — sufficiently
corroborated accomplice’s testimony). Because there is sufficient
evidence corroborating Lawson’s accomplice testimony, Coley’s
enumeration of error fails in this regard.
Coley’s argument about the general sufficiency of the evidence
also fails. When evaluating a challenge to the sufficiency of the
evidence, we view the evidence presented at trial in the light most
favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of
the crime of which he was convicted. See Jackson v. Virginia, 443
U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979). “‘As long as
there is some competent evidence, even though contradicted, to
support each fact necessary to make out the State’s case, the jury’s
verdict will be upheld.’” Williams v. State, 287 Ga. 199, 200 (695
SE2d 246) (2010) (citation and punctuation omitted).
Coley asserts that the evidence, which included Lawson’s
testimony that he witnessed Coley murder Adams and that he heard
Coley admit to shooting Adams, was vague and conflicting. But our
review “leaves to the jury the resolution of conflicts in the testimony,
the weight of the evidence, the credibility of witnesses, and
reasonable inferences” to be made from the evidence. Menzies v.
State, 304 Ga. 156, 160 (816 SE2d 638) (2018). There was sufficient
evidence to support Coley’s conviction, so this enumeration of error
fails.
3. Coley contends that the trial court erred in denying his
motion for a mistrial after the State elicited testimony about Coley’s arrest for sale of cocaine and a probation violation, which Coley
argues was inappropriate character evidence. As explained below,
because Coley did not move for a mistrial at the time of the
complained-of statement, he did not preserve this issue for appellate
review.
Where a motion for mistrial is based on alleged bad-character
evidence and is denied, that denial is reviewed for abuse of
discretion. Brewer v. State, 301 Ga 819, 820 (804 SE2d 410) (2017).
But if the defendant “did not make a contemporaneous motion for a
mistrial” at the time the defendant became aware of the matter
giving rise to the motion, then the defendant “has waived review of
this issue on appeal.” Moore v. State, 294 Ga. 450, 451 (754 SE2d
333) (2014); see also Burrell v. State, 301 Ga. 21, 26 (799 SE2d 181)
(2017).
At Coley’s trial, the statements at issue — which included
references to the reason he was arrested in the first place — were
made during the State’s direct examination of GBI Special Agent
Spencer Barron. During Special Agent Barron’s direct examination, the State asked what Coley was under arrest for when Special Agent
Barron interviewed him, and Special Agent Barron replied, “[s]ale
of cocaine and violation of probation,” prompting Coley’s counsel to
object. At a sidebar conference, defense counsel argued that Special
Agent Barron’s testimony inappropriately placed Coley’s character
at issue; the State replied that the defense had opened the door to
the testimony because it had elicited testimony from Lawson that
Coley was “on the run,” which begged an explanation of why Coley
was fleeing. The trial court responded that “[f]or the time being, you
don’t need to go into it. We’ll talk about that,” and instructed the
State to “stay away” from such testimony. Special Agent Barron’s
testimony continued without any further objection or motion from
defense counsel about the issue. After another witness testified, a
recess was taken for lunch, and before the jury returned to the
courtroom after lunch, defense counsel moved for a mistrial. The
court denied Coley’s motion for a mistrial but said that it would give
a “limiting” (curative) instruction. Defense counsel then objected,
stating that “at this point in the trial, we would except to an instruction if it’s going to call attention to it to the jury.” Counsel
reasoned that “[h]ad it been done immediately, that would be one
thing. But at this point, it’s either sunk in their heads or they’ve
forgotten about it. One or the other. Either way, it can only be a
bad thing.”
As we discuss below in Division 6 (a), counsel’s objection to the
court’s offer to give a curative instruction at that point was not a
patently unreasonable trial strategy. Nevertheless, because Coley’s
motion for a mistrial was not made contemporaneous with the
testimony that he complained about, the issue of whether the court
abused its discretion in denying Coley’s later motion for mistrial is
not properly before this Court for review. See, e.g., Burrell, 301 Ga.
at 26 (allegation of error pertaining to mistrial not preserved
because defendant did not move for mistrial based on witness
outburst during direct examination until after completion of cross-
examination); Moore, 294 Ga. at 451 (allegation of error pertaining
to mistrial not preserved because defendant did not move for
mistrial based on improper evidence of defendant’s prior felony conviction until after State rested); Lowe v. State, 287 Ga. 314, 315
(695 SE2d 623) (2010) (allegation of error pertaining to mistrial not
preserved because defendant did not move for mistrial based on
witness’s testimony about alleged improper character evidence,
despite a contemporaneous sustained objection, until after several
other witnesses finished testifying). This enumeration of error
therefore fails.
4. Coley argues that the trial court erred by charging the
jury on party to a crime. We disagree.
We note first that Coley properly preserved this issue for
appellate review because he objected to a jury charge on party to a
crime, not only at the charge conference but also after the court
finished charging the jury. Cf. White v. State, 291 Ga. 7, 8 (727 SE2d
109) (2012) (“[F]ailure to object to the charge as given precludes
appellate review” unless there was plain error.). “Every person
concerned in the commission of a crime” — including a person who
“[d]irectly commits the crime” or “[i]ntentionally aids or abets in the
commission of the crime” — “is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a),
(b) (1) and (3). “[M]ere presence or approval of a criminal act” is
insufficient to render a person a party to a crime; shared criminal
intent is required. Coe v. State, 293 Ga. 233, 235 (748 SE2d 824)
(2013) (citation and punctuation omitted). Whether such intent
exists is a jury question that may be inferred from a person’s
“presence, companionship, and conduct before, during, and after the
crime.” Williams v. State, 304 Ga. 658, 661 (821 SE2d 351) (2018)
(citation and punctuation omitted). If slight evidence is produced at
trial supporting the theory of party to a crime, then the trial court
is authorized to instruct the jury on it. Baptiste v. State, 288 Ga.
653, 658-659 (706 SE2d 442) (2011).
Here, sufficient evidence supported the trial court’s instruction
on party to a crime. The evidence showed that Coley and Lawson
were cousins who had spent most of the day together before Adams’s
murder, and that Coley had shown Lawson that Coley was carrying
a loaded pistol that day. That night, when Coley noticed that
someone else was walking down the street, Coley and Lawson immediately got off the road and hid in the bushes together. And
after Adams was shot and killed, Coley and Lawson fled the scene
together, disposed of evidence together, and hid together in an
abandoned house for the rest of the night. Perhaps most
importantly, Coley claimed that Lawson was the shooter and that
Coley was merely with Lawson when Lawson shot Adams. In light
of Coley’s statement, and because the evidence supported the court’s
instruction on party to a crime, this enumeration of error fails.
5. Coley contends that the trial court erred by allowing the
alternate juror into the jury room during jury deliberations and that
a new trial is therefore required. Because Coley agreed to the
alternate juror’s presence in the jury room during deliberations,
however, any error in this respect is waived.
Under Georgia law, “[u]pon final submission of the case to the
jury, the alternate jurors shall not retire with the jury of 12 for
deliberation but may be discharged.” OCGA § 15-12-171. If the trial
court deems it advisable to keep one or more of the alternate jurors
available, however, “it may direct that one or more of the alternate jurors be kept in the custody of the sheriff or one or more court
officers, separate and apart from the regular jurors, until the jury
has agreed upon a verdict.” Id. And although there is a rebuttable
presumption of harm to the defendant if an alternate juror sits in on
the jury’s deliberations “over the defendant’s objections,” “any error
is waived” if the defendant “agreed to the alternate juror’s presence
during deliberations.” Eller v. State, 303 Ga. 373, 380 (811 SE2d
299) (2018) (citations and punctuation omitted).
Here, after the court instructed the jury and sent it into the
jury room to begin deliberations, the court informed the parties that
it was “thinking about sending the alternate in with them with
instructions not to participate in any discussion.” Defense counsel
voiced some apprehension about the prospect and said, “I don’t
know,” to which the court replied, “I don’t have any feelings one way
or the other.” Defense counsel then conferred with Coley and
afterward informed the court, “I’ve explained this to my client as
best I could and he doesn’t have any problem with [the alternate
juror] sitting in there.” The court stated, “I’m not going to do it over objections,” and defense counsel replied, “No. He doesn’t and I don’t
think I’ll have an objection to that either.”
Because Coley ultimately agreed, without objection, to the
alternate juror’s presence in the jury room during deliberations, any
error concerning a violation of OCGA § 15-12-171 is waived, and this
enumeration therefore fails. As we emphasized in Eller, however,
“[w]e should be clear . . . that the trial court’s action was
inappropriate, and we do not approve of permitting alternate jurors
to be present during deliberations.” 303 Ga. at 380.
6. Coley argues that his trial counsel was ineffective for
three reasons: (a) counsel refused the court’s offer of a curative
instruction after Special Agent Barron testified about Coley’s arrest
for sale of cocaine and probation violation; (b) counsel failed to
request that the firearm and magazine Coley allegedly used to
murder Adams be fingerprinted; and (c) counsel failed to move to get
a more representative jury. Because Coley has not established
ineffectiveness as to any of these claims, this enumeration of error
also fails. To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. Strickland v. Washington, 466 U. S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To satisfy the prejudice prong, a
defendant must establish a reasonable probability that, in the
absence of counsel’s deficient performance, the result of the trial
would have been different. Strickland, 466 U. S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
(a) Counsel’s refusal of a curative instruction. As discussed
above, after Special Agent Barron testified that Coley had been
arrested for sale of cocaine and a probation violation, Coley’s counsel
objected to the trial court’s later offer to provide a curative
instruction about that testimony to the jury. Coley’s counsel stated
that he objected to an instruction because it risked calling the jury’s
attention to Special Agent Barron’s testimony, to Coley’s detriment.
It is well established that “‘trial tactics and strategy are almost
never adequate grounds for finding trial counsel ineffective unless
they are so patently unreasonable that no competent attorney would
have chosen them.’” Brewer, 301 Ga. at 821 (quoting McNair v.
State, 296 Ga. 181, 184 (766 SE2d 45) (2014) (punctuation omitted)).
Here, we conclude that the explanation provided by Coley’s counsel
for declining a curative instruction indicates that his decision was a strategic one that was not patently unreasonable. See, e.g., Brewer,
301 Ga. at 821 (counsel’s “strategic decision not to draw the jury’s
attention to the booking reference by declining a curative instruction
was ‘within the wide latitude of presumptively reasonable
professional conduct engaged in by trial attorneys’” (quoting
Kitchens v. State, 289 Ga. 242, 245 (710 SE2d 551) (2011)). Counsel
was therefore not deficient, and this claim of ineffective assistance
(b) Counsel’s failure to have the firearm and magazine tested
for fingerprints. At trial, the State entered into evidence the
handgun and magazine that police had recovered during their
investigation. Ballistic testing had confirmed that a cartridge
casing found at the murder scene came from the handgun, but an
agent testified that he did not have the firearm tested for
fingerprints because based on his “knowledge, training and
experience, obtaining a fingerprint from a firearm is extremely,
extremely unlikely.” Coley contends that because “[f]ingerprints
have been an effective means of police investigation for decades,” his counsel should have had the firearm and magazine tested. He
further contends that counsel’s failure to test this evidence for
fingerprints—which Coley says could have provided exonerating
evidence—rendered counsel constitutionally ineffective. But Coley
has presented no evidence that he has had the firearm or the
magazine tested, and he therefore “has not shown that this evidence
would have been favorable to his defense and that a reasonable
probability exists that the result of the trial would have been
different.” Howard v. State, 298 Ga. 396, 399 (782 SE2d 255) (2016)
(because defendant “did not have the blood tested post-trial,” he
“fail[ed] to demonstrate prejudice”); Geiger v. State, 295 Ga. 648,
653-654 (763 SE2d 453) (2014) (because defendant did not present
any evidence “that additional testing of the shell casing would have
produced evidence that would have been favorable to him at his trial
. . . he cannot show prejudice from his counsel’s failure to have the
shell casing independently tested”). Indeed, “[m]ere speculation
about what the evidence would have shown had it actually been
obtained does not satisfy the requirement of showing prejudice.” Howard, 298 Ga. at 399. As a result, this claim of ineffective
assistance also fails.
(c) Counsel’s failure to move for a more representative jury.
Finally, Coley “contends that his counsel did not move to get a more
representative jury to hear his case.” The record shows, however,
that Coley’s counsel did challenge, under Batson v. Kentucky, 476 U.
S. 79 (106 SCt 1712, 90 LE2d 69) (1986), the State’s peremptory
strikes of four of six African-American jurors. The trial court
rejected that challenge based on the State’s explanation that three
of those jurors were closely involved with or related to Coley, and
that the other had a grandson who was under indictment and
represented by the public defender’s office, which also represented
Coley. Coley now argues that the State’s proffered reasons for
striking those jurors were insufficient.
Our evaluation of this enumeration is complicated by the fact
that the attorneys’ individual voir dire of the jurors — which we
presume normally would contain the information most relevant to
Coley’s claim for at least three of the four jurors — does not appear in the record before us; indeed, it appears that it was not
transcribed.4 Coley does not argue that counsel was ineffective for
failing to have those portions of voir dire transcribed, and he
provides no evidence establishing a Batson violation or
ineffectiveness of counsel in this regard. Cf. Hunt v. State, 288 Ga.
794, 798-799 (708 SE2d 357) (2011) (defendant failed to establish
prejudice for ineffective assistance claim that counsel’s failure to
have voir dire transcribed precluded full review of alleged Batson
violation because “[a] general unspecified hope of reversible error
during voir dire will not secure a defendant another trial” (citation
and punctuation omitted)); see also Bester v. State, 294 Ga. 195, 198
n.2 (751 SE2d 360) (2013) (noting that although defendant’s
“enumeration of error alleges that trial counsel was ineffective in
failing to assert a Batson claim, the record shows that trial counsel
did assert such a claim, and [defendant’s] brief addresses the merits
of his Batson claim without arguing it in the context of an ineffective
4 During the general voir dire, there was a discussion with one of the
jurors about some relation to Coley; that discussion was transcribed and appears in the record. assistance of counsel claim”). Instead, his appellate brief offers only
the unsupported argument that the State’s “reason was not specific
to each juror and only grouped all the jurors together as not suited,”
and that “this was not a satisfactory showing on the record” by the
State “to satisfy the requirement of a Batson challenge.”
Under these circumstances — where counsel challenged
unsuccessfully the constitutionality of the State’s strikes against
four jurors, and where Coley has provided no evidence
demonstrating how counsel performed deficiently in so doing —
Coley has failed to carry his burden of demonstrating that his trial
counsel was either deficient or that Coley was prejudiced by any
alleged deficiency.
This enumeration of error also fails, and Coley’s conviction is
affirmed.
Judgment affirmed. All the Justices concur. Decided April 15, 2019.
Murder. Pulaski Superior Court. Before Judge Kaufold.
Jonathan P. Waters, for appellant.
Timothy G. Vaughn, District Attorney, Gregory A. Oberry,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Tina M. Piper, Rebecca
J. Dobras, Meghan H. Hill, Assistant Attorneys General, Andrew A.
Pinson, Solicitor-General, Ross W. Bergethon, Deputy Solicitor-
General, for appellee.