Dana Evans v. State

• Court: Court of Appeals of Georgia
• Decided: June 30, 2021
• Docket: A21A0186
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

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June 17, 2021

In the Court of Appeals of Georgia A21A0186. EVANS v. THE STATE.

MCFADDEN, Chief Judge.

After a jury trial with multiple co-defendants, Dana Evans was convicted of

conspiracy to violate the Georgia RICO (Racketeer Influenced and Corrupt

Organizations) Act, see OCGA § 16-14-1 et seq., and making false statements to a

Georgia Bureau of Investigation (“GBI”) agent, see OCGA § 16-10-20. She appeals,

challenging the denial of her motion for a directed verdict of acquittal; but there was

sufficient evidence supporting the jury’s verdict. Evans also challenges the denial of

her motion to dismiss the indictment, citing Garrity v. New Jersey, 385 U. S. 493 (87

SCt 616, 17 LE2d 562) (1967), which bars evidence obtained from public employees

by threatening their employment; but Garrity does not support her argument and the

trial court did not abuse its discretion in denying the motion to dismiss. Evans further claims that the trial court erred in denying her severance motion; but she has not

shown a denial of due process. She also claims two errors with regard to the jury; but

her jury pool challenge fails because she did not meet her burden of providing

sufficient evidence of the racial composition of the relevant jury list, and her claim

that two jurors should have been excused for cause fails because she waived the claim

as to one of the jurors and did not show an abuse of discretion as to the other. Evans

has enumerated numerous other claims of error, including various evidentiary rulings;

but several of the claims were not properly preserved for appellate review1 and others

do not amount to harmful error. Because Evans has failed to show reversible error,

we affirm.

1. Facts and Procedural posture.

1 It appears from the briefs and cited parts of the record that the trial court agreed to treat an objection by one defendant as an objection for all defendants unless someone opted out of the objection. Although this is not the typical method for preservation of error amongst co-defendants, since it appears that this procedure was allowed by the trial court, we will accept it for purposes of review in this case. Compare Whatley v. State, 342 Ga. App. 796, 798 (1) (805 SE2d 599) (2017) (appellant waived alleged error by failing to raise own objection or join in co- defendant’s objection); Maxwell v. State, 267 Ga. App. 227, 229 (3) (599 SE2d 228) (2004) (“it is well established that an issue raised by a co-defendant at trial does not preserve the issue for another co-defendant who does not join in the objection”).

2 The state indicted 35 Atlanta Public School (“APS”) employees, including

Evans, for conspiracy to violate the Georgia RICO Act and other offenses arising out

of alleged cheating on standardized testing of students.2 Evans and 11 other

defendants were jointly tried before a jury.3 After more than six months of trial, the

jury found Evans guilty of conspiracy to violate the RICO Act and making false

statements to a GBI agent, but found her not guilty of three other counts of making

false statements or writings.4 The trial court sentenced Evans as a first offender,

imposing a total sentence of five years, with one year to be served in confinement and

four years to be served on probation. Evans moved for new trial, the motion was

denied, and this appeal followed.

2. Directed verdict of acquittal.

Evans claims that the trial court erred in denying her motion for a directed

verdict of acquittal. The claim is without merit.

2 Additional facts are set forth in Cotman v. State, 342 Ga. App. 569 (804 SE2d 672) (2017). 3 Of those defendants who did not go to trial, 21 entered guilty pleas and two passed away. 4 The jury found another defendant not guilty of any charges, found the other ten defendants guilty of conspiracy to violate the RICO Act, and found some of those defendants guilty of additional offenses.

3 The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. When evaluating the sufficiency of evidence to support a conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. On appeal, this [c]ourt does not re-weigh the evidence or resolve conflicts in testimony, but instead defers to the jury’s assessment of the weight and credibility of the evidence.

Doricien v. State, 310 Ga. 652, 653-654 (1) (853 SE2d 120) (2020) (citations and

punctuation omitted).

So viewed, the evidence showed that Evans was the principal of Dobbs

Elementary School and allowed cheating on standardized tests to take place at Dobbs

in order to meet certain testing targets.

As with most other schools within APS, the pressure to meet [these] Targets at Dobbs was tremendous, and the principal would stress at every staff meeting that Targets had to be met by any means necessary. In fact, the principal was so adamant about meeting these goals that she would tell Dobbs’s teachers that they should find new professions if they were unable to make Targets.

Cotman v. State, 342 Ga. App. 569, 576 (804 SE2d 672) (2017). The evidence

showed that Evans failed to stop the cheating in order to meet the testing targets,

prevented others from discussing it, threatened teachers, and retaliated against at least

4 one person for speaking to the GBI about it. Evans herself falsely told GBI agents that

she was unaware of any cheating at Dobbs.

In challenging the denial of a directed verdict of acquittal as to the offenses of

which she was convicted, Evans has pointed to purported conflicts in the evidence

supporting her defense. But “[a]ny conflicts or inconsistencies in the evidence [were]

for the jury to resolve.” Walker v. State, 348 Ga. App. 273 (1) (821 SE2d 567) (2018)

(citation omitted). The trial court did not err in denying Evans’ motion for a directed

verdict of acquittal since the evidence did not demand a verdict of not guilty and “the

evidence was sufficient to support [her] convictions[.]” Cotman, supra at 586 (2). See

OCGA § 17-9-1 (a) (directed verdict of acquittal authorized where there is no conflict

in the evidence and the evidence demands a verdict of not guilty).

3. Motion to dismiss indictment.

Evans contends that the trial court erred in denying her motion to dismiss the

indictment because her statements to investigators were not voluntary and were

obtained in violation of Garrity v. New Jersey, supra. We disagree.

Garrity bars evidence obtained from public employees by threatening their

employment.

5 In Garrity, New Jersey police officers were investigated for allegedly fixing traffic tickets. The officers were informed that they could exercise their Fifth Amendment privilege against self-incrimination if they wished, but doing so would cost them their jobs under a New Jersey statute which required all public employees to cooperate with investigations or forfeit their positions. The officers cooperated with the investigation but were prosecuted. They moved to suppress their statements as involuntary and coerced. The Supreme Court held that statements obtained under threat of removal from office cannot be used in subsequent criminal proceedings and reversed the New Jersey Supreme Court’s decision allowing the officers’ statements into evidence.

State v. Stinson, 244 Ga. App. 622, 624 (536 SE2d 293) (2000) (citation and

punctuation omitted). Our state Supreme Court has “held that trial courts should apply

a ‘totality of the circumstances’ analysis to the question whether [such] statements

made under threat of termination should be excluded in a criminal proceeding.”

Georgia Peace Officers Standards & Training Council v. Anderson, 290 Ga. App. 91,

93 (1) (658 SE2d 840) (2008). See State v. Thompson, 288 Ga. 165, 167-169 (702

SE2d 198) (2010) (affirming grant of defendant’s motion to suppress statements due

to Garrity violation); Zeigler v. State, 350 Ga. App. 716, 719-723 (1) (830 SE2d 256)

(2019) (reversing trial court’s denial of motion to suppress statements obtained in

violation of Garrity); State v. Stanfield, 290 Ga. App. 62, 66 (2) (658 SE2d 837)

(2008) (under Garrity, coerced statements could not be used at trial).

6 Here, Evans claims protection under Garrity that the case does not afford.

Rather than claiming that her statements should have been suppressed at trial, Evans

argues that the indictment should have been dismissed. But “[d]ismissal of an

indictment is an extreme sanction, used only sparingly as a remedy for unlawful

government conduct.” Olsen v. State, 302 Ga. 288, 294 (2) (806 SE2d 556) (2017)

(citation and punctuation omitted). See Wilcox v. State, 250 Ga. 745, 755-756 (4)

(301 SE2d 251) (1983) (dismissal of indictment is generally disfavored as the remedy

for government misconduct should be tailored to the injury suffered); Robinson v.

State, 200 Ga. App. 515, 517 (1) (408 SE2d 820) (1991) (dismissal is an extreme

sanction which should be infrequently utilized). Evans has failed to show that the

extreme sanction of dismissal of the indictment was an appropriate remedy tailored

to the alleged injury of a Garrity violation.

In arguing for dismissal as an appropriate remedy, Evans has conflated

involuntary statements under Garrity with immunized testimony. Garrity does not

hold, as Evans suggests, that coerced statements by public employees are treated as

formal immunized statements for use and derivative use immunity. Garrity makes no

mention of use or derivative use immunity and holds only that statements obtained

from public officers under threat of removal from office are involuntary and

7 inadmissible. See Garrity, supra at 500; State v. Aiken, 282 Ga. 132, 134 (1) (646

SE2d 222) (2007) (Supreme Court in Garrity concluded that the threat of a job loss

was sufficient to render the statement involuntary and inadmissible at subsequent

criminal proceeding). Indeed, the Court in Garrity expressly stated that “[n]o

immunity was granted, as there is no immunity statute applicable in these

circumstances.” Garrity, supra at 495.

Evans also cites other federal cases as support for her assertion that the

indictment in this case is subject to dismissal for the purported Garrity violation. But

her reliance on those cases is misplaced since they did not involve involuntary

statements under Garrity and instead involved immunized testimony before grand

juries that had been compelled by the grant of immunity. See Kastigar v. United

States, 406 U. S. 441 (92 SCt 1653, 32 LE2d 212) (1972) (government could compel

grand jury testimony from witnesses who had invoked privilege against self-

incrimination by giving them immunity from use and derivative use of the compelled

testimony); United States v. Semkiw, 712 F2d 891 (3d Cir. 1983) (government

compelled grand jury testimony by granting use immunity); United States v.

McDaniel, 482 F2d 305 (8th Cir. 1973) (involving immunized grand jury testimony).

And contrary to Evans’ argument equating involuntary statements with immunized

8 grand jury testimony, the cases upon which she relies actually recognize the

distinction between the two and explain that involuntary statements obtained in

violation of the privilege against self-incrimination, while inadmissible at trial, do not

bar prosecution. See Kastigar, supra at 461 (IV) (“A coerced confession . . . is

inadmissible in a criminal trial, but it does not bar prosecution.”); United States v.

North, 920 F2d 940, 947 (II) (D. C. Cir. 1990) (recognizing citations to long line of

Supreme Court cases deciding “that a defendant who has been compelled to

incriminate himself is entitled only to have that evidence suppressed at trial and not

to have it excluded from consideration by the grand jury”) (punctuation omitted).

Moreover, with regard to involuntary statements under Garrity, it has been expressly

held that

neither Garrity nor the Fifth Amendment prohibits prosecution and punishment for false statements or other crimes committed during the making of Garrity-protected statements. Giving a false statement is an independent criminal act that occurs when the individual makes the false statement; it is separate from the events to which the statement relates, the matter being investigated.

United States v. Brown, 492 Fed. Appx. 57, 60 (11th Cir. 2012) (citation, punctuation,

and emphasis omitted).

9 Unlike the cases upon which she relies, Evans has not claimed that she was

compelled to give immunized testimony before the grand jury and that the indictment

was improperly based upon such testimony; rather, she relies solely on her allegedly

involuntary statements under Garrity. In fact, she has made no showing by the record

as to any of the evidence upon which the indictment was returned. “Generally, with

regard to the efficacy of an indictment, no inquiry into the sufficiency or legality of

the evidence is indulged.” Thomas v. State, 331 Ga. App. 641, 656 (5) (771 SE2d

255) (2015) (citation and punctuation omitted). “A defendant seeking to quash an

indictment has the burden to overcome the presumption that it was returned on legal

evidence by showing there was no competent evidence upon which it could lawfully

have been returned.” State v. Scott, 344 Ga. App. 744, 746 (811 SE2d 457) (2018)

(citation and punctuation omitted). In this case, Evans “has not carried [her] burden

of showing that the evidence on which the indictment was returned was . . . wholly

incompetent evidence.” Id. at 747 (citations and punctuation omitted). See also

Williams v. State, 244 Ga. App. 26, 27 (1) (535 SE2d 8) (2000) (rejecting argument

that indictment should have been dismissed because the defendant “provided . . . no

proof whatsoever that the indictment against her was based on wholly illegal

evidence”).

10 We review the trial court’s ruling for an abuse of discretion. See Smith v. State,

323 Ga. App. 668, 671 (2) (747 SE2d 859) (2013); State v. Brooks, 301 Ga. App. 355,

359 (687 SE2d 631) (2009). “While trial courts are authorized to dismiss

[indictments], this authority is not unlimited, and a trial court abuses its discretion

when it interferes with the [s]tate’s right to prosecute by dismissing an [indictment]

without a legal basis to do so.” State v. Banks, 348 Ga. App. 876, 880 (825 SE2d 399)

(2019) (citation and punctuation omitted). Since Evans has not shown any legal basis

upon which the trial court could have dismissed the indictment, we find no abuse of

discretion.

4. Severance.

Evans argues that the trial court erred in denying her motion to sever her trial

from that of the other defendants. But she “has not borne [her] burden to show

reversible error by denial of due process.” Sims v. State, 195 Ga. App. 631, 632 (1)

(394 SE2d 422) (1990).

“OCGA § 17-8-4 provides that when two or more defendants are jointly

indicted for a felony less than capital[, such] defendants may be tried jointly or

separately in the discretion of the trial court.” Majors v. State, 203 Ga. App. 139, 140

(1) (416 SE2d 156) (1992) (citation and punctuation omitted).

11 It is well-settled that a trial court has broad discretion to grant or deny a motion for severance. In ruling on a severance motion, the trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process.

Davis v. State, 304 Ga. 547, 552 (3) (820 SE2d 10) (2018) (citation and punctuation

omitted).

Although Evans has pointed to the length of the trial and the number of

defendants, she has not identified evidence against another defendant that possibly

was considered against her. See Martin v. State, 189 Ga. App. 483, 488 (3) (c) (376

SE2d 888) (1988) (affirming denial of motion for severance in RICO case where

appellant did not establish that his conviction was based on “spillover” from other

defendants). And while she has cited an evidentiary dispute with her co-defendants,

she has not articulated specific defenses antagonistic to hers at trial. Indeed, mere

“[a]ntagonism between co-defendants . . . is not enough in itself to require severance,

rather appellant must also demonstrate that he was harmed by the failure to sever.”

Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993), overruled in part on

12 other grounds in Sanders v. State, 281 Ga. 36, 37 (1) (635 SE2d 772) (2006). Evans

“has failed to carry [her] burden of making a clear showing that the joint trial was

prejudicial and a denial of due process[, so] we conclude that the trial court did not

abuse its discretion in denying [her] motion to sever.” Dorsey v. State, 331 Ga. App.

486, 491 (3) (771 SE2d 167) (2015) (citations and punctuation omitted). See Majors,

supra at 140 (1) (affirming denial of severance where appellant failed to show actual

prejudice or denial of due process); Sims, supra at 631-632 (1) (insufficient showing

of antagonistic defenses or spillover of evidence); Beal v. State, 175 Ga. App. 234,

237 (2) (333 SE2d 103) (1985) (no error in denying severance in conspiracy case).

5. Jury pool.

Evans claims that the jury pool was not a fair cross-section of the community

due to underrepresentation of African-Americans. To prevail on such a jury pool

composition challenge, Evan must show:

(1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in jury pools is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Morrow v. State, 272 Ga. 691, 692 (1) (532 SE2d 78) (2000) (punctuation omitted).

13 Evans refers to evidence of potential jurors who answered a questionnaire, but

she has not cited any evidence on the racial composition of the relevant county master

jury list. Evans therefore “has failed to carry [her] burden because [she has]

present[ed] insufficient evidence to determine the racial composition of the [relevant]

jury master list. . . . Accordingly, [Evans] is unable to meet [her] burden to make even

a prima facie case for a fair cross-section claim [of underrepresentation].” Shubert v.

State, 306 Ga. 490, 492 (2) (831 SE2d 826) (2019). See also Bryant v. State, 288 Ga.

876, 879 (2) (708 SE2d 362) (2011) (to prove a prima facie jury pool composition

violation, defendant is required to show that the allegedly excluded group was

actually underrepresented); Morrow, supra at 695 (1) (composition of jury pool did

not violate constitution where defendant presented unreliable evidence that group was

underrepresented on county jury lists). Under these circumstances, Evans has “failed

in producing [enough] evidence to establish a statistical or factual basis of lack of

proportional[ity] to warrant a grant of a challenge to the array or to the composition

of the [jury pool].” Johnson v. State, 179 Ga. App. 467, 468 (5) (346 SE2d 903)

(1986) (insufficient evidence of systematic exclusion based on race).

6. Jurors 89 and 111.

14 Evans complains that the trial court erred in failing to strike jurors 89 and 111

for cause. As to juror 89, Evans concedes that she did not seek to remove the juror for

cause. “Because [Evans] did not make a request to strike the juror for cause, the issue

was waived for ordinary appellate review. And plain error review is not available for

this issue[.]” Hill v. State, 310 Ga. 180, 186 (3) (a) (850 SE2d 110) (2020) (citations

With regard to juror 111, the defense moved to excuse her because “she stated

that she doesn’t feel that some people should be defended by attorneys[.]” When the

juror made that statement, she was explaining her answer on a questionnaire that if

a defendant and an attorney know that the defendant is guilty, “they shouldn’t waste

their time.” After giving her explanation, the juror affirmed that as a member of the

jury she nevertheless would be able to evaluate the case and give a fair verdict to both

sides. And she had previously testified that as a juror she would base her decision on

the evidence and the law, and she would be fair to both the state and the defendants.

In denying the motion to excuse juror 111, the court found that “overall she is a

diligent person” who would follow instructions and decide the case fairly.

Whether to strike a juror for cause lies within the sound discretion of the trial judge, and the trial court’s exercise of that discretion will not be set aside absent a manifest abuse of discretion. For a juror to be

15 excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences. A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.

Collins v. State, 308 Ga. 608, 612-613 (3) (842 SE2d 811) (2020) (citations and

punctuation omitted). Here, the trial court did not abuse its discretion in refusing to

strike the juror for cause since nothing in the record shows that the juror had

expressed an opinion of guilt or innocence of Evans that was so fixed that she would

be unable to decide the case based on the evidence presented and the law charged by

the court. See Clarke v. State, 292 Ga. 305, 307-308 (2) (737 SE2d 575) (2013) (no

abuse of discretion in not excusing juror where defendant failed to carry burden of

proving that juror was not impartial).

7. Denial of motion for mistrial.

Evans enumerates that the trial court erred in denying her motion for a mistrial

on the ground that a witness purportedly testified to the ultimate issue in the case. But

pretermitting the question of whether the testimony actually concerned an ultimate

16 issue, Evans never moved for a mistrial and the motion that had been made by a co-

defendant was withdrawn.

The transcript shows that the witness, who had taught at multiple APS schools

over many years, testified: “I believe it was the culture at Atlanta Public School

System, and it — in certain areas, it was data driven. It was — there was pressure to

get scores by any means necessary.” Counsel for one of the defendants then told the

judge that he had a motion at the appropriate time, although he did not identify the

type of motion or basis for it. After the witness’ testimony had concluded, the court

asked counsel about his unexplained motion. Counsel responded that he was

withdrawing his motion for a mistrial because he did not think the testimony rose to

the level of a mistrial, and no other defendant moved for a mistrial.

Because Evans made no motion for a mistrial on the ground that the witness

had improperly testified to the ultimate issue in the case or on any other ground, her

enumeration of error claiming that the trial court improperly denied such a motion

presents nothing for review. See Howie v. State, 218 Ga. App. 45, 47 (6) (459 SE2d

179) (1995) (nothing preserved for appellate review of claim that trial court erred in

failing to grant motion for a mistrial where defendant’s attorney never moved for a

mistrial). To the extent Evans attempts to challenge other trial court rulings, she “may

17 not use [her] brief to expand [her] enumeration of errors by arguing the incorrectness

of a trial court ruling not mentioned in the enumeration of errors.” Wallace v. State,

303 Ga. 34, 37-38 (2) (810 SE2d 93) (2018) (citation and punctuation omitted).

Accord Mims v. State, 310 Ga. 853, 854 n. 2 (854 SE2d 742) (2021).

8. Exhibits.

Evans enumerates that the trial court erred in overruling defense objections to

certain state exhibits. But she has failed to carry her burden of showing reversible

error by the record.

(a) Erasure analysis.

Evans first argues that three exhibits showing erasure analysis for certain

testing in Georgia were improperly admitted under the business records exception to

the hearsay rule because they were not made in the regular course of business. See

OCGA § 24-8-803 (6). But Evans has not pointed to any evidence in the record

showing that the documents were not made in the regular course of business or

indicated where in the voluminous record the actual exhibits are located. See

Monterey Community Council v. DeKalb County Planning Commission, 281 Ga.

App. 873, 875 (1) (637 SE2d 488) (2006) (“We have repeatedly held that it is not our

job to cull the record on behalf of a party. The responsibility to locate and cite

18 evidence in the record rests with counsel, not this [c]ourt.”) (citations and punctuation

omitted). Instead, Evans has cited only to pages in the transcript where a defense

attorney made such an objection at trial. So while Evans has shown where the issue

was preserved for appellate review, she has not supported the factual premise of her

appellate argument with any evidence of error in the record. See Roberson v. State,

300 Ga. 632, 636 (III) (797 SE2d 104) (2017) (“It is well established that the burden

is on the party alleging error to show it by the record[.]”) (citation and punctuation

omitted). As a result, her claim of error amounts to a mere conclusory assertion that

the exhibits were inadmissible. See Cousins v. Tubbs, 353 Ga. App. 873, 876 (1), n.

10 (840 SE2d 85) (2020) (“We also decline to address [appellant’s] conclusory

assertions . . . given his failure to identify any record evidence supporting these broad

claims[.] ). See also Thompson v. State, 332 Ga. App. 204, 208-210 (1) (770 SE2d

364) (2015) (holding that report prepared by non-party store was not made in

anticipation of prosecution and was thus admissible under OCGA § 24-8-803 (6)).

Moreover, even if Evans had made an adequate showing of error by the record,

she has not argued, let alone shown, how she was harmed by the admission of the

documents. “It is axiomatic . . . that harm as well as error must be shown to authorize

a reversal by this court.” White v. State, 315 Ga. App. 54, 60 (3) (a) (726 SE2d 548)

19 (2012) (citation and punctuation omitted). Accord Rutledge v. State, 245 Ga. 768, 771

(3) (267 SE2d 199) (1980) (“Harm as well as error must be established by an

appellant in order to secure a reversal of [her] conviction.”). Since Evans has “failed

to show harm or prejudice, we [have no basis to] find . . . reversible error.” White,

supra (citation and punctuation omitted).

(b) Failure to grant mistrial.

Evans also argues the trial court should have granted a mistrial after the state

attempted to tender a witness’ settlement agreement with APS. The trial court

sustained the defense objection to the exhibit, but denied its motion for a mistrial and

instead gave a curative instruction to the jury. The defense did not renew its motion

for a mistrial after the curative instruction, so denial of the motion was not preserved

for appellate review. “[B]ecause [Evans] failed to renew [the] motion for mistrial after

the trial court denied it and then took other corrective action, this argument is

waived.” Smith v. State, 302 Ga. 699, 702 (3) (808 SE2d 692) (2017).

9. Leading questions.

Evans argues that the trial court erred in allowing the state to treat two

witnesses as hostile and ask them leading questions. But

20 the trial court has the discretion to allow leading questions on direct examination, when a witness is nervous, or reluctant, or hostile. When a witness demonstrate[s] a reluctance to tell what she [knows] about the [matter,] the trial court [has] great latitude to permit the assistant district attorney to treat the witness as a hostile witness and propound leading questions. It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.

Mitchell v. State, 303 Ga. 491, 494 (2) (813 SE2d 367) (2018) (citations, punctuation,

and emphasis omitted). This is not such a rare case as Evans has failed to show that

the trial court abused its discretion in allowing the state to ask leading questions of

reluctant or hostile witnesses. See Issa v. State, 340 Ga. App. 327, 341 (6) (796 SE2d

725) (2017) (trial court did not abuse its discretion in allowing state to ask leading

questions of reluctant and nervous witness).

10. Apology letters.

Evans contends that the trial court allowed improper bolstering of state

witnesses by permitting them, on direct examination and before their credibility had

been attacked, to read apology letters to the jury that they had written as part of their

guilty pleas. Evans has not identified these witnesses or specified the number of

witnesses whose testimony she is challenging. Instead, she cites to pages in four

different volumes of the trial transcript as examples of the alleged improper bolstering

of witnesses.

21 But a review of the first two cited volumes of the transcript shows that after the

trial court initially allowed a witness on direct examination to read her apology letter

to the jury, the court changed its ruling during the cross-examination of that witness.

The judge announced that he had reconsidered the defense objection, that he believed

his prior ruling had been a mistake, and that he would not allow any further reading

of such letters unless it became appropriate as a prior consistent statement after

impeachment of a witness. The court declined a suggestion to charge the jury about

the letter that had already been admitted, finding that the witness’ credibility had

subsequently been attacked so the letter was admissible. There was no objection to

this ruling and Evans has not challenged it on appeal. Evans has thus failed to show

that the trial court erred in ruling that letter was properly admitted due to the

subsequent attack on the witness’ credibility. See Sterling v. State, 267 Ga. 209, 213

(9) (477 SE2d 807) (1996) (rejecting claim of improper bolstering based on the

introduction of a witness’ taped statement before the witness testified at trial because

the witness’ credibility was eventually attacked and the tape was therefore properly

admitted as a prior consistent statement); Walters v. State, 335 Ga. App. 12, 17 n. 4

(780 SE2d 720) (2015) (“Although some of these credibility attacks occurred after

[the] prior consistent statement [had already been] introduced through [other]

22 testimony, a prior consistent statement may be admissible if the testifying witness’s

credibility was eventually attacked at a later point in the trial.”) (citations and

The other transcript volumes cited by Evans show that two other state

witnesses were extensively cross-examined by the defense; that on redirect

examination of each witness the state introduced their respective apology letters; and

that there were no objections to those letters. Despite the lack of objections, “with

regard to rulings on evidence, [this] court is allowed to consider plain errors affecting

substantial rights although such errors were not brought to the attention of the [trial]

court.” Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22) (2020) (citations and

punctuation omitted). Evans has not made any argument or showing that there was

plain error affecting her substantial rights. See Gates v. State, 298 Ga. 324, 327 (3)

(781 SE2d 772) (2016) (“beyond showing a clear or obvious error, plain-error

analysis requires the appellant to make an affirmative showing that the error probably

did affect the outcome below”) (citation and punctuation omitted).

11. Discovery.

23 Evans contends that the trial court erred in failing to grant a continuance,

exclude evidence, or grant a mistrial after the state committed seven discovery

violations. The contention is without merit.

(a) Updated statement.

The only purported discovery violation identified by Evans involved a witness

who had initially said that the cheating had begun in a particular year, but then

testified that he later told the prosecutor he believed it had actually begun in a

different year. Outside the presence of the jury and the witness, the defense objected

on the ground that the state had committed a discovery violation by failing to provide

them with an updated witness statement and the defense suggested that the court

could declare a mistrial or exclude the evidence. The judge directed that the witness

be returned to the courtroom to be questioned about the matter. Upon questioning by

the judge and defense counsel, the witness explained that the previous week he had

told the prosecutor that the cheating started in 2005 instead of 2006. The judge then

announced that the trial would resume and the witness was allowed to continue

testifying before the jury.

As an initial matter, we note that while Evans makes the conclusory claim that

the state committed a discovery violation, she has not cited any particular discovery

24 rule that was violated. It is not this court’s role to speculate about the legal basis for

an appellant’s argument and “mere conclusory statements are not the type of

meaningful argument contemplated by our rules.” Brittain v. State, 329 Ga. App. 689,

704 (4) (a) (766 SE2d 106) (2014) (citations and punctuation omitted). We further

note that Evans has not indicated where in the record she moved for a continuance

and our review of the transcript does not reveal such a contemporaneous motion;

rather, as noted above, the transcript shows only a defense attorney’s statement of his

understanding that the court could declare a mistrial or exclude the evidence. So any

claim that the court erred in denying a continuance presents nothing for review. See

Howie, supra.

Nevertheless, for purposes of review we will presume that there was a

discovery violation and that the defense requested a mistrial or exclusion of the

evidence.

OCGA § 17-16-6 provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the [discovery] requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the

25 witness not disclosed, or may enter such other order as it deems just under the circumstances.

“In enacting [OCGA § 17-16-6], the legislature did not impose a rigid formulation or

grant an exclusive remedy for a defendant or a fatal consequence to the [s]tate for

failure to comply with the discovery mandates. Instead, it cloaked the trial court with

the discretion to use its own judgment to ensure a fair trial.” Childs v. State, 287 Ga.

488, 493 (5) (696 SE2d 670) (2010) (citation and punctuation omitted).

In this case, we find no abuse of discretion by the trial court in allowing the

defense to question the witness outside the presence of the jury, rather than declaring

a mistrial or excluding the evidence. See Davis v. State, 307 Ga. 746, 754 (3) (838

SE2d 263) (2020) (denial of mistrial reviewed for an abuse of discretion and will not

be disturbed unless it is essential to the preservation of the right to a fair trial); Acey

v. State, 281 Ga. App. 197, 200 (2) (635 SE2d 814) (2006) (court not required to

consider any particular course of action in any particular order, but has discretion to

take corrective action it deems appropriate). “Indeed, under § 17-16-6, the severe

sanction of exclusion of evidence applies only where there has been a showing of bad

faith by the [s]tate and prejudice to the defense.” Childs, supra (citation and

punctuation omitted). Evans has failed to show bad faith or prejudice, and we

26 conclude that “the trial court did not abuse its discretion in allowing [the witness] to

testify.” Id.

(b) Other discovery violations.

In addition to the alleged discovery violation discussed above, Evans claims

that the state continued to violate the rules of discovery throughout the trial. But she

has not identified any other specific violations or cited the discovery rules supporting

such claims. Instead, she simply refers to parts of the record where the defense

allegedly raised discovery arguments at trial. This attempt to incorporate by reference

the arguments made before the trial court is a “practice [that] is not approved by this

[c]ourt and we decline to look in the record for matters which should have been set

forth in the brief. Moreover, if we were to permit this practice a party could evade

entirely the [word] limitations on briefs established in our [r]ules.” Dixon v. State,

320 Ga. App. 257, 261 (1) (739 SE2d 737) (2013) (citation and punctuation omitted).

Accord Williams v. State, 356 Ga. App. 19, 35 (5) (846 SE2d 190) (2020) (appellant

cannot incorporate by reference arguments made in the lower court).

12. Expression of opinion.

27 Evans claims that the trial court improperly expressed opinions on the

credibility of multiple witnesses in violation of OCGA § 17-8-57. But she has not

shown any such violations.

“It is error for any judge, during any phase of any criminal case, to express or

intimate to the jury the judge’s opinion as to whether a fact at issue has or has not

been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1). “The purpose

of OCGA § 17-8-57, at least in part, is to prevent the jury from being influenced by

any disclosure of the trial court’s opinion regarding the credibility of a witness.”

Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012).

(a) Attempt to incorporate argument by reference.

Evans cites to a page in the transcript where she claims the defense “raised an

issue” regarding an exchange the court had in relation to a witness. But beyond this

reference to the record, Evans has made no argument in her appellate brief regarding

a specific violation of OCGA § 17-8-57 and has not identified either a particular

witness or any particular comment made by the court in front of the jury. As

explained above, this sort of attempt to incorporate by reference an argument

allegedly made in the trial court is not appropriate and provides nothing for review.

Dixon, supra. Accord Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670

28 SE2d 469) (2008) (our review is limited to arguments actually made in appellate

briefs).

(b) Handshake.

Evans argues that the trial judge violated OCGA § 17-8-57 by shaking a

witness’ hand. Evans raised the issue outside the presence of the jury and asked the

judge to instruct the jury that he knows the witness. The judge subsequently gave the

requested instruction, telling the jury that he knows the witness; that when the witness

reached up to shake his hand, he reflexively shook it; that the jurors should not give

any weight to his testimony because of it; and that the credibility of all witnesses is

solely a matter for their determination.

Assuming without deciding that the handshake could be considered an

expression of opinion as contemplated by OCGA § 17-8-57, we find that the brief

interaction in this case did not amount to an improper comment on the credibility of

the witness. “Both this court and our Supreme Court have held that such brief,

friendly exchanges between courts and witnesses do not impermissibly comment on

a witness’s credibility.” Griffin v. State, 331 Ga. App. 550, 558 (3) (769 SE2d 514)

(2015). Evans has not shown a violation of OCGA § 17-8-57 since the brief

interaction here cannot be said to have “undermined the integrity of the process or

29 improperly enhanced the credibility of this witness[.]” Holland v. State, 310 Ga. App.

623, 627 (2) (714 SE2d 126) (2011) (citation and punctuation omitted). See Smith v.

State, 292 Ga. 588, 589-590 (2) (740 SE2d 129) (2013) (trial judge’s comment that

witness was a “very thorough investigator” did not express an opinion that bolstered

the witness’ credibility in violation of OCGA § 17-8-57).

(c) Comments during testimony of defense witness.

While defense counsel was questioning a witness about a school curriculum,

the judge asked how many more witnesses counsel planned to call to testify about the

curriculum. When counsel responded that there would be a full day of such testimony,

the judge said he thought there would be a point of diminishing returns. Evans did not

object to the judge’s comments as being improper expressions of opinion on the

evidence, so we review only for plain error. See OCGA § 17-8-57 (b). “To establish

plain error under OCGA § 17-8-57 (b), [Evans] must point to a legal error that . . .

was clear and obvious beyond reasonable dispute, affected [her] substantial rights,

and seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” Barboza v. State, 309 Ga. 319, 325 (2) (a) (845 SE2d 673) (2020)

(citation and punctuation omitted). Evans has made none of these showings and

30 “[s]he therefore has failed to demonstrate plain error.” Bamberg v. State, 308 Ga. 340,

353 (5) (839 SE2d 640) (2020).

13. Mistrial for improper contact with jury.

Evans claims that the court erred in failing to grant her motion for a mistrial

after having improper contact with the jury on three occasions: when jurors told the

judge in the hallway that they did not know who the prosecutors were, when jurors

asked the judge in the hallway about holiday breaks, and when one of the alternate

jurors informed the court that she was sick. But pretermitting the issue of whether

these communications involved substantive matters that prejudiced Evans, see Fuller

v. State, 277 Ga. 505, 506 (2) (591 SE2d 782) (2004) (court should have no

communication with a juror that would prejudice the accused and such

communication should be restricted to matters relating to the comfort and

convenience of the jury), is the fact that Evans never moved for a mistrial.

Evans claims in her brief that she moved for a mistrial and that the motion was

denied. But the pages of the transcript which she cites in support of these claims show

that each time the court informed the parties of the communications with jurors,

Evans did not object and did not move for a mistrial. The transcript does show that

later in the trial, counsel for another defendant noted that some weeks previously

31 there had been concern about the judge having contact with jurors in the hallway due

to the layout of the building and counsel said that he wanted to place on the record

his objection to such contact. But he did not move for a mistrial or request any other

relief, nor did counsel for Evans or any other defendant request a mistrial.

“Upon being told of [communication between the court and jury], a motion for

a mistrial is a proper manner for objecting.” Hanifa v. State, 269 Ga. 797, 808 (6)

(505 SE2d 731) (1998). But a “motion for mistrial must be promptly made as soon

as the party is aware of the matter giving rise to the motion. 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.” Thomas v. State, 310 Ga. 579, 581 (2) (853 SE2d 111)

(2020) (citations and punctuation omitted). In this case, “[w]hen the judge explained

the encounter[s] to the parties . . . , no [motion for mistrial] was [made]. As a result,

[Evans] waived any [review of a mistrial for the] ex parte communication[s].”

Anthony v. State, 303 Ga. 399, 407 (5) (811 SE2d 399) (2018).

14. Bias against the defense.

Evans claims that the trial judge showed bias against the defense. As an initial

matter, we note that Evans has not indicated that she sought recusal of the judge or

32 any other specific relief as a result of such purported bias. Regardless, we further note

that the examples of alleged bias that she cites merely involved the court’s attempts

to reduce repetitive questioning of witnesses and control the orderly process of the

trial. A “trial judge [may take] such measures as necessary to ensure the orderly

administration of the trial[.]” Moore v. State, 301 Ga. App. 220, 223 (1) (687 SE2d

259) (2009). See also Smith v. State, 297 Ga. 268, 270 (2) (773 SE2d 269) (2015)

(trial court has considerable discretion to control the trial to ensure the orderly

administration of justice). Indeed, “[i]t is the duty of the trial court to control the trial

of the case and to ensure a fair trial to both sides on the disputed issues in the case.

Sometimes this requires interference by the court with the conduct of counsel.”

Thompson v. State, 349 Ga. App. 1, 6 (2) (a) (825 SE2d 413) (2019) (citation and

punctuation omitted). Here, Evans “has not shown that the trial court abused its

considerable discretion in the manner in which it dealt with [her defense] during the

[trial].” Bonner v. State, 295 Ga. 10, 15 (3) (757 SE2d 118) (2014).

15. Refusal to instruct jury.

Evans complains that the trial court erred in refusing to give two requested

instructions during the trial about evidentiary matters. But these issues were not

preserved for appellate review.

33 (a) Stricken testimony.

First, Evans claims that after certain testimony was struck, the judge

erroneously refused a defense request that he tell the jurors not to consider that

evidence. But Evans misrepresents what actually occurred at trial. At the time of the

testimony, defense counsel asked the court to instruct the jury “to strike that.” The

court gave the requested instruction and defense counsel thanked the court. The next

day, counsel noted that some testimony had been stricken the prior day and asked that

“going forward if there is testimony going to be struck,” if the court would tell the

jury not to consider such evidence. Counsel clarified that he was not asking the judge

“to go backwards and do it since I don’t remember what it was, but moving forward.”

So the trial court did not refuse a timely request to give the instruction for the

cited testimony that had been stricken, as there was no such request,

contemporaneous or otherwise. Instead, there was only a request the day after the

testimony in question for a future instruction in the event of other testimony being

stricken later in the trial. Evans has not identified any such other stricken testimony

and has not cited any instance when the trial court subsequently refused to give a

properly requested instruction. This claim of error presents nothing for review. See

Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (3) (696

34 SE2d 663) (2010) (“Issues which have not been ruled on by the trial court may not

be raised on appeal.”) (citation and punctuation omitted).

(b) Character witnesses.

Evans contends that the trial court erred in refusing her request to instruct the

jury that the court had limited each defendant to three character witnesses. The

transcript shows that when counsel for Evans made the request, he stated that the

witness limitation was fine, that the court had discretion to impose such a limitation,

and that he did not have a problem with it. See Mayo v. State, 261 Ga. App. 314, 316-

317 (2) (582 SE2d 482) (2003) (defendant acquiesced in court’s curtailment of the

number of character witnesses). The judge indicated that he might give such an

instruction, but twice asked counsel to provide legal authority for it. Counsel replied,

“Okay.” And then, without citing any authority, counsel concluded, “I think that’s all

I have.”

Evans has not indicated if counsel ever provided the requested legal authority

to the court or ever elicited a final ruling from the court regarding such an instruction.

So it is unclear if this enumeration presents a reviewable ruling. Davis v. State, 244

Ga. App. 345, 348 (5) (535 SE2d 528) (2000) (enumeration of error presents nothing

for review where defendant failed to elicit final ruling by trial court). Nonetheless,

35 since it appears from the parties’ briefs that the trial court never gave the instruction,

we will assume for purposes of review that there was a reviewable denial of the

requested instruction.

Evans, however, has not cited any legal authority showing that the instruction

was required and that the failure to give it constituted error. Moreover, her claim that

she was harmed because the jury was left to infer that she was not able to present such

character witnesses is unsupported by any evidence as she has not identified any

witness whose testimony she was unable to introduce because of the trial court’s

ruling. “Under these circumstances, we find it highly probable that the failure to issue

the requested limiting instruction, even if in error, was harmless and did not

contribute to the jury verdict.” Martinez v. State, 315 Ga. App. 727, 730 (3) (738

SE2d 255) (2012).

16. Cross-examination.

Evans contends that the trial court violated her constitutionally protected right

of cross-examination by preventing her from exploring a witness’ credibility. There

was no such constitutional violation.

One of the state’s witnesses was a former APS human resources director who

testified, among other things, that she had been indicted in the case for a RICO charge

36 and giving false statements, that she had pled guilty to a lesser offense of malfeasance

in office, and that she had been given a 12-month probated sentence with various

conditions. The defense conducted a lengthy cross-examination of the witness, which

included thorough questioning about her guilty plea, her plea negotiations with the

state, and her agreement to testify in exchange for the reduced misdemeanor sentence

of probation that was significantly less than a possible 25-year felony sentence. When

a defense attorney began to ask the witness about statements made by the judge

concerning severe consequences after trial, the state objected. The judge noted that

punishment was not a matter for the jury to consider and instructed counsel not to

interject statements he had made about sentencing The court clarified that the witness

could be questioned about the misdemeanor sentence she had received since that went

to her credibility.

Although the Sixth Amendment right to confrontation secures the right of cross-examination, the right of cross-examination is not an absolute right that mandates unlimited questioning by the defense. To the contrary, trial courts retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things interrogation that is only marginally relevant. The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

37 Smith v. State, 300 Ga. 538, 541-542 (3) (796 SE2d 666) (2017) (citation and

Here, the trial court did not, as Evans contends, abuse its discretion by

improperly limiting her ability to explore the witness’ credibility with regard to her

guilty plea. On the contrary, the court expressly allowed defense questioning of the

witness about her guilty plea since it went to her credibility. See Castleberry v. State,

274 Ga. 290, 293 (2) (553 SE2d 606) (2001) (on cross-examination, accomplice’s

guilty plea may be used “to reflect on the witness’ credibility”). Indeed, as recounted

above, “the record reveals that [defense] counsel engaged in extensive

cross-examination of [the witness] as to [her] motives for testifying [in exchange for

her plea to a reduced charge and sentence]. Thus, the jury was aware that [she] had

turned state’s evidence and was in a position to determine whether or not [her]

testimony was credible.” McCoy v. State, 159 Ga. App. 648 (284 SE2d 664) (1981).

Under these circumstances, there was no infringement of the constitutional right of

confrontation “as alleged by [Evans since the defense] was allowed a thorough and

sifting cross-examination of [the witness] and the issue of [her] credibility was

squarely before the jury.” Id. at 649.

17. Declaring mistrial sua sponte.

38 Evans argues that the trial court should have acted sua sponte and granted her

a mistrial at various points based on comments made by the judge himself, comments

made by the prosecutor, and inquiries from the jury. As an initial matter, we note

again that “[w]here a defendant fails to move for a mistrial, [she] waives any appellate

argument that the trial court erred by not granting one.” Robinson v. State, 336 Ga.

App. 627, 630 (2) (785 SE2d 304) (2016). See also Thomas, supra at 581 (2).

As for the court acting sua sponte, Evans has not shown a manifest necessity

for such action.

A trial court is required to act sua sponte only if there is a manifest necessity for a mistrial. And manifest necessity requires urgent circumstances. Moreover, a trial court’s decision whether to grant a mistrial based upon manifest necessity is entitled to great deference. This deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.

Moore v. State, 301 Ga. App. 220, 224 (2) (687 SE2d 259) (2009) (citations and

punctuation omitted). Since there has been no showing of the urgent circumstances

required for manifest necessity, “we conclude that the trial court did not deprive

[Evans] of a fair trial by not declaring a mistrial sua sponte.” Fleming v. State, 306

Ga. 240, 244 (2) (830 SE2d 129) (2019).

18. Jury charge.

39 Evans claims that a specific intent to violate the law is an element of a RICO

conspiracy and that the trial court erred in failing to charge the jury on this specific

intent requirement. Evans has not provided any legal authority for her premise that

a RICO conspiracy is a specific intent crime other than citing OCGA § 16-14-4.

While that code section sets forth prohibited activities under the RICO Act, it does

not contain plain language providing that specific intent to violate the law is an

element of a RICO conspiracy. See generally White v. State, 305 Ga. 111, 114-115

(1) (823 SE2d 794) (2019) (we afford statutory language its plain and ordinary

meaning); Patterson v. State, 299 Ga. 491, 495 (789 SE2d 175) (2016) (holding that

the crime of simple assault as set forth in OCGA § 16-5-20 (a) (2) does not include

plain language requiring proof of a specific intent, and noting that it was a matter for

the General Assembly to phrase a statute to include such a specific intent

requirement).

Moreover, even assuming for the sake of argument that such a specific intent

charge might have been appropriate, Evans has shown no reversible error. “We have

previously held . . . that a trial court does not err in giving a charge on general intent

where the charge as a whole adequately informs the jury about the elements of the

specific-intent crime and further informs them of the [s]tate’s burden to prove such

40 elements beyond a reasonable doubt.” Aaron v. State, 275 Ga. App. 269, 270 (3) (620

SE2d 499) (2005). Here, the jury charge as a whole adequately informed the jury

about the elements of the RICO conspiracy and of the state’s burden of proof, so there

was no reversible error.

Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.

Phipps concur.