THIRD DIVISION MILLER, P. J., RAY and BRANCH, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 8, 2013
In the Court of Appeals of Georgia A12A2456. LITTLEJOHN v. THE STATE.
MILLER, Presiding Judge.
Following a jury trial, Daniel Kirk Littlejohn was convicted of burglary
(OCGA § 16-7-1 (a) (2009)), theft by taking (OCGA § 16-8-2), and second degree
criminal damage to property (OCGA § 16-7-23 (a) (1)). Littlejohn filed a motion for
new trial, which the trial court denied. On appeal, Littlejohn contends that the trial
court erred (i) in denying his Batson1 challenge; (ii) in intimating an opinion as to the
credibility of a witness and his guilt; (iii) in admitting similar transaction evidence
without conducting a Uniform Superior Court Rule (“USCR”) 31.3 hearing, and; (iv)
in restricting the scope of his cross-examination of two witnesses. In addition,
1 Batson v. Kentucky, 476 U.S. 79, 97-98 (106 SC 1712, 90 LE2d 69) (1986). Littlejohn contends that (v) his trial counsel provided ineffective assistance. We
discern no error and affirm.
Viewed in the light most favorable to the verdict,2 the trial evidence shows that
on the evening of August 6, 2007, the victims discovered that their residence in
Monroe County had been burglarized. The residence was located in a rural area near
the county line abutting the city of Macon. The victims observed that the perpetrator
had gained entry by breaking through the steel gate and kicking in the side door of
the residence. The victims noticed that the residence had been ransacked and
numerous items had been stolen during the burglary, including a computer, a printer,
a PlayStation II videogame system, several guns, a digital camera, a video camera, a
crossbow, a chainsaw, two weed eaters, a small motorcycle, and a drug recognition
expert (“DRE”) bag that the male victim had obtained during his law enforcement
training as a POST certified City of Macon police officer. The physical damage
sustained to the residence as a result of the burglary exceeded $500. The total value
of the victims’ loss for the damaged and stolen items was $4,397.92.
The victims reported the burglary to the local sheriff’s office, and officers were
dispatched to investigate the matter. An officer took photographs of the scene. The
2 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2 officer also recovered a partial shoe print and a partial fingerprint, but neither print
was sufficient to identify a suspect.
One day after the burglary incident, Littlejohn contacted his acquaintance, and
attempted to sell him several of the victims’ stolen items. Littlejohn was unaware that
his acquaintance was a confidential informant who had supplied information to local
law enforcement officers on several prior occasions. The informant testified that
Littlejohn, who he identified by his alias “Quiet Man,” drove to the informant’s
residence in Macon and showed the informant the stolen items. When the informant
observed a police book with a badge inscription among the stolen items, the
informant refused the stolen items in fear that the police may have been involved. In
efforts to reassure the informant, Littlejohn advised that the items had been taken
from a location in Monroe County.
After Littlejohn left the residence, the informant contacted an investigator with
the Monroe County Sheriff’s Department and advised that he had seen some of the
items that had been stolen during the burglary. The investigator had known the
informant for almost twenty-four years and had used the informant to obtain
information in several prior investigations. The investigator stated that the informant
had never previously provided false information to him, the informant’s information
3 had always been accurate, and the informant’s information had led to numerous
arrests and convictions.
The informant agreed to assist the investigator with the burglary investigation,
and made arrangements with Littlejohn to purchase the stolen items. After purchasing
the stolen items from Littlejohn, the informant turned the items over to the
investigator. The informant also gave the investigator a description of the truck that
Littlejohn had been driving.
The investigator requested the informant’s additional assistance in locating
Littlejohn and the truck. The informant made arrangements to meet Littlejohn at a
designated location. The informant notified the investigator of the arrangements, and
the investigator traveled to the designated location in accordance with the plan. After
observing the truck matching the informant’s description, the investigator called local
officers for backup assistance.
The investigator observed Littlejohn enter the truck and drive away from the
location. The investigator followed Littlejohn and attempted to conduct a stop. When
the investigator activated his patrol lights, Littlejohn suddenly accelerated and led the
investigator on a high speed chase. During the course of the chase, Littlejohn’s truck
collided with another patrol vehicle. Littlejohn was ejected from the truck and
4 attempted to crawl away from the scene. Littlejohn was apprehended, arrested, and
charged with the offenses related to the burglary incident.
During the ensuing trial, the State introduced Littlejohn’s prior burglary
conviction as similar transaction evidence. An investigator testified that Littlejohn
had been involved in the burglary of another residence located in the rural area of
Monroe County near the county line abutting the city of Macon. In that incident,
Littlejohn had gained entry into the residence by breaking through the back door.
After stealing several valuable items from the residence, Littlejohn attempted to sell
the stolen items to a pawn shop and to his acquaintances. Following his arrest,
Littlejohn executed a waiver of his rights and gave the investigator a statement
admitting that he had committed that burglary offense.
At the conclusion of the trial in the instant case, the jury returned a verdict
finding Littlejohn guilty of the charged offenses.
1. Littlejohn first contends that the trial court erred in denying his Batson
challenge since the State used its peremptory strikes in a discriminatory manner.
The record shows that after the jury was selected, trial counsel initially
confirmed that the composition of the jury appeared to be correct. The trial court then
excused the jury pool. Before the jury was sworn, however, trial counsel announced
5 that he had a Batson motion that he wanted to make on the record. Trial counsel
argued the basis for his motion, noting that the State had exercised its strikes as to
jurors 3, 8, 67, 69, 70, and 85, all of whom were African-Americans. Trial counsel
later acknowledged that the State had a valid basis for striking juror 69 since his
occupation as a counselor for inmates may have caused concern for the State. Trial
counsel nevertheless insisted that the State’s exercise of strikes against the other five
jurors was discriminatory. The trial court directed the prosecutor to explain the basis
for her strikes.
After the prosecutor gave her explanations, the trial court denied the Batson
motion. The trial court ruled that Littlejohn’s challenge was untimely since it was not
raised until after the jury had been released from the courtroom. The trial court further
found that the prosecutor had offered race-neutral explanations for its strikes and that
no intentional discrimination had been shown.
Thereafter, the trial proceedings adjourned and resumed two days later. After
handling several pretrial matters, the trial court brought the impaneled jury into the
courtroom and administered the jury oath.
As an initial matter, we note that the trial court erred in ruling that Littlejohn’s
Batson challenge was untimely. A Batson challenge is untimely when it is made after
6 the jury has been sworn. See Laney v. State, 271 Ga. 194, 195 (3) (515 SE2d 610)
(1999) (ruling that a Batson challenge should be made before the jury is sworn);
Barrow v. State, 269 Ga. App. 635, 639 (6) (605 SE2d 67) (2004) (ruling that a
Batson challenge made after the jury has been impaneled and sworn is untimely). This
Court has previously held that a Batson challenge is timely when made after the jury
is selected but before it is sworn. See Wright v. State, 186 Ga. App. 104, 105 (1) (366
SE2d 420) (1988). Since Littlejohn made his Batson challenge before the jury was
sworn, it was timely. Id.
The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent’s discriminatory intent.
(Citation and punctuation omitted.) Toomer v. State, 292 Ga. 49, 52 (2) (a) (734 SE2d
333) (2012).
Since the trial court directed the State to explain its strikes, the preliminary
question of whether Littlejohn had established a prima facie case of discrimination
is moot. See Drane v. State, 271 Ga. 849, 851 (1), n. 3 (523 SE2d 301) (1999) (ruling
7 that the preliminary finding as to prima facie discrimination is moot once the
proponent gives reasons for its strikes and the trial court makes its findings); Odom
v. State, 241 Ga. App. 361, 363 (2) (526 SE2d 646) (1999) (holding that because the
trial court ruled upon the ultimate question of intentional discrimination, the
preliminary issue as to the prima facie case of discrimination was rendered moot).
Accordingly, the State’s explanations must be examined. See Odom, supra, 241 Ga.
App. at 363 (2).
At step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. . . . If the proponent of the strike carries its burden by providing a race-neutral explanation for the peremptory strike, the trial court must advance to step three of the Batson analysis and decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of all the circumstances that bear upon the issue of racial animosity. This involves an evaluation of the credibility of the strike’s proponent, which in turn may depend on the specificity and case-relatedness of the explanation for the strike given at step two. . . . At the third stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. . .
8 . [W]e look to our State’s trial judges to ferret out and eliminate invidious discrimination in the jury selection process. But they should do so using the well-defined framework set forth in Batson . . . and the similar decisions of this Court.
(Citations and punctuation omitted.) Toomer, supra, 292 Ga. at 54-55 (2) (b). Bearing
these principles in mind, we turn to address the prosecutor’s explanations for the
strikes.
(a) The prosecutor stated that she struck jurors 3 and 8 because they were
unemployed. The prosecutor’s explanation presented a justifiable and race-neutral
basis, and thus, the trial court’s findings as to these strikes were proper. See Ware v.
State, 258 Ga. App. 706, 708 (2) (574 SE2d 898) (2002).
(b) The prosecutor said that she struck juror 67 because he nodded his head
when she asked whether he could listen to and fairly consider the testimony of a
confidential informant. She claimed that based upon juror 67’s nodding of his head,
she believed that he would have a problem judging the confidential informant’s
testimony fairly. The prosecutor also explained that she struck juror 70 because the
juror did not make eye contact with her, she felt that the juror was more inclined
towards the defense position, and she did not feel any interpersonal interaction with
9 the juror. The trial court was authorized to conclude that the prosecutor had offered
race-neutral explanations for these strikes.
Significantly, there is no voir dire transcript in the record, and the portion of
the trial transcript reflecting the prosecutor’s explanations and the trial court’s rulings
did not preserve the jurors’ actions and demeanors. Nevertheless, “[t]here is no
requirement that the State’s racially neutral explanation for its use of peremptory
strikes be supported by a transcript of voir dire.” (Citations and punctuation omitted.)
Smith v. State, 264 Ga. 449, 453 (4) (448 SE2d 179) (1994); see also Burgess v. State,
194 Ga. App. 179, 180 (390 SE2d 92) (1990). The trial court had the opportunity to
observe the jurors’ actions during the voir dire proceedings. In the absence of
evidence reflecting that the trial court’s findings were clearly erroneous, we must
affirm the trial court’s determination that the prosecutor’s explanations were race-
neutral. See Toomer, supra, 292 Ga. at 57-58 (2) (d) (affirming the trial court’s ruling
that appellant failed to carry his burden to prove discriminatory intent in the
prosecutor’s strikes based upon the prospective jurors’ demeanor since the trial court
observed the challenged jurors’ demeanor during voir dire); Smith, supra, 264 Ga. at
451 (1) (“[U]nder Batson, a trial court’s finding must be affirmed unless it is clearly
erroneous.”) (citation and punctuation omitted).
10 (c) Lastly, the prosecutor stated that she struck juror 85 because his hair was
in a ponytail. The trial court was authorized to find that the prosecutor’s explanation
was race-neutral. “[T]he proponent of the strike need not offer an explanation that is
concrete, tangible, or specific. The explanation need not even be case-related. The
explanation for the strike only needs to be facially race-neutral.” 3 (Citation and
punctuation omitted.) Toomer, supra, 292 Ga. at 54 (2) (b). Since the growing of long,
unkempt hair is not a characteristic that is peculiar to any race, the trial court was
authorized to find that the prosecutor had offered a race-neutral explanation for its
strike. See Purkett v. Elem, 514 U.S. 765, 769 (115 SC 1769, 131 LE2d 834) (1995)
(ruling that a prosecutor’s explanation that he struck a juror because he had long,
curly, and unkempt hair was sufficient to survive the second prong of the Batson
analysis).
3 We note that Littlejohn cites to George v. State, 263 Ga. App. 541, 544 (2) (588 SE2d 312) (2003), which reversed the trial court’s denial of the defendant’s Batson challenge based upon a ruling that the reasons articulated for strikes must be both racially neutral and related to the particular case. In Toomer, supra, 292 Ga. at 54 (2) (b), the Georgia Supreme Court recently explained that the reasons articulated for strikes need not be case-related, and need only be facially race-neutral. The Toomer decision expressly disapproved any Georgia case that rules to the contrary. Accordingly, to the extent that the decision in George was based upon a standard that has been disapproved, it cannot be applied here.
11 After the prosecutor provided race-neutral explanations for its strikes,
Littlejohn failed to prove that the prosecutor’s strike were motivated by
discriminatory intent. Consequently, Littlejohn’s Batson challenge fails to present a
basis for reversal.
2. Littlejohn further argues that the trial court erred in intimating an opinion as
to the credibility of a witness and his guilt, in violation of OCGA § 17-8-57. In this
regard, Littlejohn challenges the trial court’s interjection of questions to the
investigator as to whether the investigator had checked the reliability of the
informant’s information, and whether the investigator trusted the informant’s
information. Littlejohn also challenges the trial court’s questions to the informant as
to which items he had purchased from Littlejohn and his inability to recall every
stolen item that he had purchased. Although Littlejohn’s counsel did not object to the
trial court’s questions during the trial, we must review this contention of error to
determine whether there was a violation of OCGA § 17-8-57 that constituted plain
error. Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011) (ruling that
“[e]ven where a defendant has failed to object or move for a mistrial in response to
an alleged comment on the evidence by the trial court in violation of OCGA §
12 17-8-57, this Court nevertheless will examine the claim for plain error.”) (citations
and punctuation omitted).
OCGA § 17-8- 57 provides that
[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
Nevertheless, “[i]t is well settled that a trial court may propound a clarifying question
in order to develop the truth of a case” without violating this statute. (Citation and
punctuation omitted.) Putman v. State, 270 Ga. App. 45, 47 (4) (606 SE2d 50) (2004).
The extent of such questioning is a matter of the trial court’s discretion, as long as the
questioning does not intimate an opinion as to what has or has not been proved or as
to the guilt of the accused. See Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d
252) (1998). Upon reviewing the trial court’s questioning in this case, we conclude
that it did not cross the line, but rather, was interposed for the purposes of developing
the truth in the case and of clarifying the witnesses’ testimony. Accordingly, no
13 violation of OCGA § 17-8-57 occurred. See id.; see also Sims v. State, 306 Ga. App.
68, 71-72 (2) (701 SE2d 534) (2010).
3. Littlejohn also contends that the trial court erred in admitting similar
transaction without conducting a USCR 31.3 hearing.4
The record shows that the State filed a notice of intent to introduce similar
transaction evidence. During a pretrial hearing, Littlejohn’s counsel announced that
there was no need for a similar transaction hearing because he was willing to stipulate
that Littlejohn’s prior burglary was admissible as similar transaction evidence. The
State nevertheless insisted upon an abbreviated hearing so that it could state its
purpose for introducing the similar transaction evidence on the record. During the
abbreviated hearing, the State informed the trial court that the similar transaction
evidence was based upon Littlejohn’s 1999 burglary conviction and stated that the
4 Before similar transaction evidence may be admitted, a USCR 31.3 (B) hearing must be held and the State must show “that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation omitted.) Robinson v. State, 312 Ga. App. 736, 751 (5) (719 SE2d 601) (2011). Although USCR 31.3 provides the right to a hearing, it does not require an evidentiary hearing for the production of testimonial evidence. See Harvey v. State, 284 Ga. 8, 11 (4) (d) (660 SE2d 528) (2008).
14 purpose of the evidence was to show Littlejohn’s modus operandi, plan, and scheme
since the burglaries were accomplished in very similar manners. The State’s notice
attached the 1999 indictment, which set forth the factual basis for the prior burglary
offense, and the sentencing form entering the judgment of conviction. Littlejohn’s
counsel stipulated that there was no objection to the similar transaction evidence, and
that the requirements of USCR 31.3 had been met. The stipulation was entered on the
record while Littlejohn was present in court, and Littlejohn did not repudiate trial
counsel’s authority to make the stipulation at that time.
Contrary to Littlejohn’s claim, the foregoing shows that a USCR 31.3 (B)
pretrial hearing was held, although the hearing was abbreviated in light of the
stipulations made by Littlejohn’s counsel. Likewise, there is no merit to Littlejohn’s
claim that the stipulations were invalid since the record did not reflect his personal,
express authorization of the stipulations. See Martin v. State, 251 Ga. App. 149-150
(1) (553 SE2d 827) (2001) (rejecting a defendant’s claim that his defense attorney’s
stipulation failed because the record did not contain his personal waiver as to the
stipulated facts). The record shows that Littlejohn did not repudiate the oral
stipulations made in open court in his presence. Littlejohn therefore acquiesced in the
stipulations, and the stipulations were binding upon him. Id. In light of the
15 stipulations, any objection that Littlejohn had to the admissibility of the challenged
evidence was waived. See Damerow v. State, 310 Ga. App. 530, 534 (3) (714 SE2d
82) (2011). To the extent that Littlejohn argues that his trial counsel was ineffective
in stipulating to the similar transaction evidence, his claim will be addressed in
Division 5 (a) below.
4. Littlejohn asserts that the trial court erred in restricting the scope of his
cross-examination of witnesses regarding the informant’s prior criminal history.
Again, no error has been shown.
Although each party has a right to a thorough and sifting cross-examination of the other party’s witnesses, such right is not unfettered, and a trial court may restrict the scope of cross-examination to the issues, and its exercise of discretion will not be interfered with on appellate review unless manifestly abused.
(Citation omitted.) Crosby v. State, 287 Ga. App. 109, 114 (3) (650 SE2d 775)
(2007).
The record reflects that in response to the prosecutor’s direct examination
questions, the investigator testified at length regarding the informant’s prior criminal
history, including his numerous arrests and convictions. When Littlejohn’s trial
counsel began to cross-examine the investigator as to the same issues that had already
16 been explored in his earlier testimony, the trial court interrupted his questioning and
conducted a bench conference. During the bench conference, the trial court directed
counsel not to elicit cumulative testimony. The trial court nevertheless ruled that trial
counsel was allowed to question the investigator as to the informant’s reliability
pertaining to the instant case.
Contrary to Littlejohn’s contention, the trial court did not abuse its discretion
in controlling the scope of cross-examination. The trial court was authorized to
exclude cumulative questioning on matters that had already been covered. See
Osborne v. State, 291 Ga. App. 711, 714 (4) (662 SE2d 792) (2008); Hopson v. State,
281 Ga. App. 520, 522 (1) (b) (636 SE2d 702) (2006).
5. Finally, Littlejohn contends that his trial counsel provided ineffective
assistance in several respects.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). 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. In reviewing the trial court’s decision, we accept the trial court’s factual findings and
17 credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.
(Citations and punctuation omitted.) Jones v. State, 318 Ga. App. 342, 345-346 (3)
(733 SE2d 400) (2012).
(a) Littlejohn argues that his trial counsel was ineffective (i) in stipulating to
the similar transaction evidence of his prior burglary conviction, (ii) in placing his
character in issue, and (iii) in failing to join in the prosecutor’s request for curative
instructions when the informant testified that he and Littlejohn had previously been
incarcerated together. Littlejohn’s arguments are unavailing.
(i) Littlejohn has failed to show that trial counsel was ineffective for stipulating
to the similar transaction evidence.
“Entering into a stipulation is a valid trial strategy, and reasonable trial strategy
does not constitute deficient performance.” (Citations and punctuation omitted.)
Pruitt v. State, 282 Ga. 30, 35 (4) (e) (644 SE2d 837) (2007). This Court has
previously held that a trial counsel’s stipulation to a defendant’s prior conviction may
18 constitute reasonable trial strategy, which we will not second guess on appeal. See
Jones, supra, 318 Ga. App. at 349-350 (3) (b). At the motion for new trial hearing,
trial counsel testified that he stipulated to the similar transaction evidence since it
clearly met the prerequisites for admissibility in the case. Trial counsel further
explained that his strategy was to address the similar transaction evidence at trial by
pointing out the differences in the prior burglary. The record confirms that the similar
transaction evidence establishing Littlejohn’s prior 1999 conviction for burglarizing
another residence in Monroe County was sufficiently similar and was admissible for
the proper purposes of showing Littlejohn’s modus operandi, plan, and scheme. See
King v. State, 246 Ga. App. 100, 101-102 (2) (539 SE2d 614) (2000); Henderson v.
State, 190 Ga. App. 243 (378 SE2d 530) (1989). “There is no deficient performance
when an attorney fails to object to admissible evidence.” (Citation omitted.) Poole v.
State, 291 Ga. 848, 857 (8) (734 SE2d 1) (2012). As such, no error has been shown
from trial counsel’s strategies of stipulating to the admissibility of the similar
transaction evidence and electing to challenge the substance of the evidence during
the trial.
(ii) Littlejohn has likewise failed to show that trial counsel was ineffective in
interjecting character evidence during the cross-examination of a witness. In this
19 regard, Littlejohn claims that his trial counsel erred by asking the investigator
whether he was aware of Littlejohn’s prior burglary conviction in Monroe County.
At the motion for new trial hearing, trial counsel explained that he made a strategic
decision to pursue this line of questioning since he knew that the prior burglary
conviction would be admitted as similar transaction evidence, and the evidence was
useful to challenge the investigator’s failure to compare the partial fingerprints found
at the scene of the burglary to Littlejohn’s fingerprints that were of record due to his
prior conviction.
“Generally, strategic decisions regarding which defense theories to pursue and
the manner of conducting cross-examination are within the exclusive province of the
attorney after consultation with the client and do not amount to ineffective
assistance.” (Citation omitted.) Boatright v. State, 308 Ga. App. 266, 269 (1) (b) (707
SE2d 158) (2011). The trial court was authorized to find that trial counsel’s cross-
examination of the investigator was part of a valid trial strategy to point out the
alleged deficiency in the investigation. See id. at 269-270 (1) (b). Accordingly,
Littlejohn’s ineffective assistance claim fails. Id.
(iii) The record further shows that in response to the prosecutor’s examination,
the informant testified that he was familiar with Littlejohn because they had been
20 incarcerated together. The prosecutor promptly interrupted and asked the trial court
to give the jury a curative instruction to disregard the informant’s statement. The trial
court denied the request, finding that the testimony was not problematic in light of the
introduction of the similar transaction evidence showing Littlejohn’s prior burglary
conviction. Although Littlejohn now argues that his trial counsel erred in failing to
join in the prosecutor’s request for a curative instruction, his claim is without merit.
To the extent that the brief reference to Littlejohn’s prior incarceration was merely
cumulative of the admissible evidence of his prior burglary conviction, Littlejohn has
failed to show the requisite prejudice to support his claim. See, e.g., Bridges v. State,
286 Ga. 535, 540-541 (7) (690 SE2d 136) (2010). Moreover, since it affirmatively
appears from the record that the trial court in its discretion would have denied the
request for a curative instruction, trial counsel’s failure to join in the prosecutor’s
request does not constitute ineffective assistance. See Head v. State, 288 Ga. App.
205, 208 (2) (653 SE2d 540) (2007). It is axiomatic that the “[f]ailure to pursue a
futile motion does not constitute ineffective assistance.” (Punctuation and footnote
omitted.) Id.
(b) Littlejohn also contends that trial counsel was ineffective in failing to move
for a mistrial when jurors observed him in shackles. At the motion for new trial
21 hearing, Littlejohn testified that the jury had seen him in handcuffs during a break in
the trial. Littlejohn stated that he had reported the matter to trial counsel, but no
arrangements were made to address the issue. In contrast, trial counsel testified that
Littlejohn never brought the matter to his attention.
In light of the conflicting testimony as to this issue, the trial court was faced
with a credibility determination. The trial court was authorized to believe trial
counsel’s testimony that Littlejohn never reported the observation matter, and its
resolution of that issue was not clearly erroneous. See Pattillo v. State, 304 Ga. App.
344, 345 (696 SE2d 370) (2010) (ruling that a trial court is authorized to disbelieve
a defendant’s self-serving testimony in favor counsel’s testimony in deciding a claim
for ineffective assistance of counsel); see, e.g., Wilson v. State, 257 Ga. App. 113, 116
(2) (a) (570 SE2d 416) (2002) (ruling that when deciding the issue of ineffective
assistance of counsel based upon conflicting testimony, the trial court must make a
credibility determination).
Moreover, although a defendant has the right to be free of the atmosphere of partiality created by the use of excessive guards or shackles in the courtroom, the mere fact of seeing an indicted accused in custody - not in the courtroom, as in the instant case, is not grounds for an automatic mistrial. Even if his trial counsel had moved for a mistrial, [Littlejohn] has not demonstrated any likelihood that the
22 motion would have been granted, particularly given the vague circumstances surrounding the alleged sightings. And assuming custodial sightings occurred, he has not shown that the sightings tainted the jury or prejudiced him. Accordingly, he cannot satisfy the prejudice prong of his ineffective assistance claim.
(Citations and punctuation omitted.) Stott v. State, 304 Ga. App. 560, 562 (2) (a) (697
SE2d 257) (2010).
(c) Lastly, Littlejohn argues that trial counsel was ineffective in failing to
object when the trial court intimated an opinion regarding the informant’s credibility.
Littlejohn’s arguments are premised upon the trial court’s questioning of the
witnesses at trial, which we have addressed in Division 2 above. As previously
discussed, the trial court did not intimate an opinion in its questioning of the
witnesses. Rather, the trial court’s questions were permitted in order to clarify the
testimony and to develop the truth of the case. See Mullins, supra, 269 Ga. at 158-159
(3). Since no error occurred, trial counsel was not ineffective in failing to interpose
a meritless objection. See Cotton v. State, 308 Ga. App. 645, 646 (708 SE2d 392)
(2011) (“[F]ailure to make a meritless objection cannot be evidence of ineffective
assistance of counsel.”) (citation and punctuation omitted).
Judgment affirmed. Ray and Branch, JJ., concur.