HINES, Justice.
Rodgerick Swanson appeals his convictions for malice murder, aggravated battery, burglary, and violation of the Georgia Controlled Substances Act in connection with the fatal stabbing of Ronald Gresham and the debilitating knifing of Donita Gresham Banks. Swanson challenges the denial of his motion to suppress his videotaped statement to police; the admission into evidence of information from his cell phone; the trial court’s instruction to the jury regarding witness identification; and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.
The evidence construed in favor of the verdicts showed that on July 13, 2003, Ronald Gresham and Donita Gresham Banks were among a group of adults and children who had gathered at the house of their mother, Mary Allen, for a family dinner. Swanson, who lived across the street, entered the house and stated to the group, “Hey. How are you all doing?” Swanson was naked and was holding a butcher knife in each hand. He then stabbed Gresham, who was seated on the couch, fatally lacerating Gresham’s diaphragm, stomach, and liver. Banks tried to “pull” Swanson off of Gresham and Swanson attacked her, stabbing her in the abdomen and piercing her
abdominal wall, liver, colon, and stomach. Swanson chased several other family members out of the house and around a tree before running across the street towards his apartment. Soon thereafter, Swanson’s white truck was seen racing down the street.
The family called 911 at 2:54 p.m. and the police were dispatched to the scene; they went to Swanson’s apartment and found it open and vacant. A search of the area turned up two knives in the woods behind the apartment matching a knife set owned by Swanson; the knife block in Swanson’s apartment was missing two knives. The found knives were consistent with the injuries sustained by Gresham and with the descriptions of the weapons used in the attacks given by the family. A subsequent analysis of the recovered knives revealed DNA matching Swanson’s profile. The police also found marijuana cigarettes and cocaine in Swanson’s apartment.
At 2:53 that afternoon, Swanson’s friend, Griffin, called Swanson on his cell phone to ask assistance with car problems; Griffin had earlier called Swanson, around 1:00 p.m., to discuss her car issues. During this later call, Swanson told Griffin that “he had had a nightmare and that he had hurt some people really bad and it felt real to him at that point” and that he was driving to the Cobb County Adult Detention Center to turn himself in. Griffin met Swanson at the detention center parking lot, but rather than turning himself in to the authorities, he stayed with Griffin the remainder of the afternoon. Later, at Swanson’s request, Griffin drove the two past Swanson’s residence, where they observed numerous police cars and people at the crime scene. Swanson told Griffin to keep driving, and they drove to Griffin’s home. The television was on, and Griffin and Swanson heard the 11:00 p.m. news report that the police were searching for Swanson. Swanson left. He later returned to Griffin’s home, telling her that he had gone to the detention center and the police were not looking for him. Griffin called 911 and gave a description of Swanson’s vehicle and the direction he was headed. Swanson was arrested that evening in the area of Griffin’s home, and his truck was impounded. After his arrest, Swanson signed a waiver of rights form and gave a videotaped statement to the police.
Three of the adults present during the knife attacks identified Swanson from a photographic lineup as the man who entered the house and stabbed Gresham and Banks. Pursuant to a search warrant, Swanson’s truck was searched and his cell phone was recovered. From the cell phone, the police were able to obtain a log of incoming calls to the phone, including those from Griffin on the afternoon of July 13, 2003.
1. The evidence at trial was sufficient to enable a rational trier of fact to find Swanson guilty beyond a reasonable doubt of the crimes
for which he was found guilty and sentenced.
Jackson v. Virginia,
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Swanson contends that the trial court erred in denying his motion to suppress and allowing into evidence his videotaped statement to police because even though he made a clear and unambiguous request for counsel, the police officers did not cease his interview, but rather coaxed and cajoled him until he signed the waiver, thus unconstitutionally inducing him to waive his right to counsel. But, the contention is unavailing for both procedural and substantive reasons.
First, upon the State’s tender into evidence of the videotape,
Swanson’s attorney stated that there was “no objection” to its admission at trial. By so doing, Swanson waived any objections to the admission of the videotape, including those raised in his motion to suppress.
Monroe v. State,
272 Ga. 201, 204 (6) (528 SE2d 504) (2000).
Nevertheless, a review of the record, including the videotape at issue, supports the determination that Swanson did not make an unambiguous and unequivocal request for counsel, thereby requiring a cessation of all questioning until an attorney was made available to him or until he reinitiated the conversation.
Roebuck v. State,
276 Ga. 136, 138 (1) (575 SE2d 895) (2003). Indeed, the videotape of the interview demonstrates that whenever Swanson made any mention of an attorney, the detective clearly advised him that he had the right to have an attorney present during questioning and that the interview would cease until an attorney could be present; the detective repeatedly and directly asked Swanson whether he wanted an attorney, and Swanson ultimately rejected the right to counsel.
3. Swanson contends that the trial court erred in allowing into evidence testimony regarding information obtained from his cell phone, including the time and length of calls, and the incoming and outgoing phone numbers. He argues that such evidence was inadmissible because his right to discovery was violated, i.e., that such evidence was not provided to him pretrial in violation of Georgia’s Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., because although he had been notified that the cell phone had been seized as a result of the search of his truck, he was not given any indication until the detective testified at trial that the contents of the cell phone had been accessed and the call logs retrieved. Swanson further argues that he was surprised and prejudiced by the introduction of the call logs because his attorney’s trial strategy was based upon a timeline conflicting with that reflected by the information recovered from the cell phone.
When the State tendered the cell phone at trial, Swanson’s attorney stated that there was no objection, and the cell phone was admitted into evidence. The State then began to question the detective who retrieved the phone about its contents.
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HINES, Justice.
Rodgerick Swanson appeals his convictions for malice murder, aggravated battery, burglary, and violation of the Georgia Controlled Substances Act in connection with the fatal stabbing of Ronald Gresham and the debilitating knifing of Donita Gresham Banks. Swanson challenges the denial of his motion to suppress his videotaped statement to police; the admission into evidence of information from his cell phone; the trial court’s instruction to the jury regarding witness identification; and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.
The evidence construed in favor of the verdicts showed that on July 13, 2003, Ronald Gresham and Donita Gresham Banks were among a group of adults and children who had gathered at the house of their mother, Mary Allen, for a family dinner. Swanson, who lived across the street, entered the house and stated to the group, “Hey. How are you all doing?” Swanson was naked and was holding a butcher knife in each hand. He then stabbed Gresham, who was seated on the couch, fatally lacerating Gresham’s diaphragm, stomach, and liver. Banks tried to “pull” Swanson off of Gresham and Swanson attacked her, stabbing her in the abdomen and piercing her
abdominal wall, liver, colon, and stomach. Swanson chased several other family members out of the house and around a tree before running across the street towards his apartment. Soon thereafter, Swanson’s white truck was seen racing down the street.
The family called 911 at 2:54 p.m. and the police were dispatched to the scene; they went to Swanson’s apartment and found it open and vacant. A search of the area turned up two knives in the woods behind the apartment matching a knife set owned by Swanson; the knife block in Swanson’s apartment was missing two knives. The found knives were consistent with the injuries sustained by Gresham and with the descriptions of the weapons used in the attacks given by the family. A subsequent analysis of the recovered knives revealed DNA matching Swanson’s profile. The police also found marijuana cigarettes and cocaine in Swanson’s apartment.
At 2:53 that afternoon, Swanson’s friend, Griffin, called Swanson on his cell phone to ask assistance with car problems; Griffin had earlier called Swanson, around 1:00 p.m., to discuss her car issues. During this later call, Swanson told Griffin that “he had had a nightmare and that he had hurt some people really bad and it felt real to him at that point” and that he was driving to the Cobb County Adult Detention Center to turn himself in. Griffin met Swanson at the detention center parking lot, but rather than turning himself in to the authorities, he stayed with Griffin the remainder of the afternoon. Later, at Swanson’s request, Griffin drove the two past Swanson’s residence, where they observed numerous police cars and people at the crime scene. Swanson told Griffin to keep driving, and they drove to Griffin’s home. The television was on, and Griffin and Swanson heard the 11:00 p.m. news report that the police were searching for Swanson. Swanson left. He later returned to Griffin’s home, telling her that he had gone to the detention center and the police were not looking for him. Griffin called 911 and gave a description of Swanson’s vehicle and the direction he was headed. Swanson was arrested that evening in the area of Griffin’s home, and his truck was impounded. After his arrest, Swanson signed a waiver of rights form and gave a videotaped statement to the police.
Three of the adults present during the knife attacks identified Swanson from a photographic lineup as the man who entered the house and stabbed Gresham and Banks. Pursuant to a search warrant, Swanson’s truck was searched and his cell phone was recovered. From the cell phone, the police were able to obtain a log of incoming calls to the phone, including those from Griffin on the afternoon of July 13, 2003.
1. The evidence at trial was sufficient to enable a rational trier of fact to find Swanson guilty beyond a reasonable doubt of the crimes
for which he was found guilty and sentenced.
Jackson v. Virginia,
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Swanson contends that the trial court erred in denying his motion to suppress and allowing into evidence his videotaped statement to police because even though he made a clear and unambiguous request for counsel, the police officers did not cease his interview, but rather coaxed and cajoled him until he signed the waiver, thus unconstitutionally inducing him to waive his right to counsel. But, the contention is unavailing for both procedural and substantive reasons.
First, upon the State’s tender into evidence of the videotape,
Swanson’s attorney stated that there was “no objection” to its admission at trial. By so doing, Swanson waived any objections to the admission of the videotape, including those raised in his motion to suppress.
Monroe v. State,
272 Ga. 201, 204 (6) (528 SE2d 504) (2000).
Nevertheless, a review of the record, including the videotape at issue, supports the determination that Swanson did not make an unambiguous and unequivocal request for counsel, thereby requiring a cessation of all questioning until an attorney was made available to him or until he reinitiated the conversation.
Roebuck v. State,
276 Ga. 136, 138 (1) (575 SE2d 895) (2003). Indeed, the videotape of the interview demonstrates that whenever Swanson made any mention of an attorney, the detective clearly advised him that he had the right to have an attorney present during questioning and that the interview would cease until an attorney could be present; the detective repeatedly and directly asked Swanson whether he wanted an attorney, and Swanson ultimately rejected the right to counsel.
3. Swanson contends that the trial court erred in allowing into evidence testimony regarding information obtained from his cell phone, including the time and length of calls, and the incoming and outgoing phone numbers. He argues that such evidence was inadmissible because his right to discovery was violated, i.e., that such evidence was not provided to him pretrial in violation of Georgia’s Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., because although he had been notified that the cell phone had been seized as a result of the search of his truck, he was not given any indication until the detective testified at trial that the contents of the cell phone had been accessed and the call logs retrieved. Swanson further argues that he was surprised and prejudiced by the introduction of the call logs because his attorney’s trial strategy was based upon a timeline conflicting with that reflected by the information recovered from the cell phone.
When the State tendered the cell phone at trial, Swanson’s attorney stated that there was no objection, and the cell phone was admitted into evidence. The State then began to question the detective who retrieved the phone about its contents. It was only after the detective was asked if he knew what Griffin’s cell phone number was that Swanson objected.
When it was learned that four days prior to his testimony, the detective had made notes on what he found on the cell phone, the trial court ultimately made the finding that the State had violated the discovery provisions by not immediately providing the detective’s notes to Swanson. The trial court gave Swanson 15 to 20 minutes to review the notes; it also gave Swanson the chance to speak with the detective about any found information, but Swanson did not avail himself of this opportunity.
Pretermitting the correctness of the trial court’s determination that a discovery violation had occurred, the trial court’s actions in giving Swanson’s counsel an opportunity to inspect the notes as well as the chance to question the detective in that regard were a permissible response to any failure by the State to comply with the criminal
discovery provisions. OCGA § 17-16-6;
Felder v. State,
270 Ga. 641, 645 (6) (514 SE2d 416) (1999). Indeed, the evidence would be inadmissible only if Swanson was able to show both prejudice and bad faith. OCGA § 17-16-6;
Felder v. State
at 645 (6). Swanson showed neither.
At trial, Swanson did not allege bad faith on the part of the State, nor does he do so now on appeal.
Moreover, Swanson fails to demonstrate how he was prejudiced by the trial court’s refusal to exclude the evidence. While Swanson claims the evidence of the call log adversely affected his defense which involved an alternative timeline, the call log evidence was merely cumulative of Griffin’s direct testimony. Consequently, admission of the evidence was not error.
Felder v. State
at 645 (6).
4. Swanson further challenges the admission of the cell phone information on the basis that it was obtained as a result of an illegal search and seizure. He urges that the search warrant issued for his truck specifically stated that the request was to search for blood, hair, fibers, and other physical evidence of the crime; consequently, the seizure of the cell phone exceeded the authority conferred by the search warrant, and that even if the cell phone itself was lawfully seized, the search of the phone’s contents was unlawful without a valid search warrant for the phone itself.
But, Swanson did not raise these issues at trial or object to the admission of the cell phone into evidence at the time it was introduced at trial; therefore, he has foreclosed appellate review in this regard.
Horton v. State,
269 Ga. App. 407, 409 (604 SE2d 273) (2004), citing
Hawes v. State,
240 Ga. 327, 333 (7) (240 SE2d 833) (1977). Even assuming arguendo that admission of the information gleaned from Swanson’s cell phone was error, any such error would be harmless beyond a reasonable doubt in light of the overwhelming evidence of Swanson’s guilt.
Lopez v. State,
267 Ga. App. 532, 538 (6) (601 SE2d 116) (2004).
5. Citing
Brodes v. State,
279 Ga. 435 (614 SE2d 766) (2005), Swanson asserts that the trial court committed reversible error by charging the jury that the level of certainty demonstrated by an eyewitness in his or her identification of a defendant is a factor that it might consider in assessing the reliability of the eyewitness. However, inasmuch as Swanson requested that the trial court give such charge, he is now precluded from challenging it as error.
Inman v. State,
281 Ga. 67, 69 (2) (635 SE2d 125) (2006). Even so, the giving
of such an instruction does not require reversal when there is other significant evidence corroborating the eyewitness identification.
Woodruff v. State,
281 Ga. 235, 236 (2) (637 SE2d 391) (2006). Furthermore, the trial court instructed the jury about the State’s burden of proving Swanson’s identity as the perpetrator beyond a reasonable doubt as well as other relevant considerations; therefore, the jury charge on level of certainty was harmless as it is highly probable that it did not contribute to the verdict. Id.
Decided May 14, 2007.
Mitchell D. Durham,
for appellant.
Patrick H. Head, District Attorney, Amelia G. Pray, Dana J. Norman, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Laura D. Dyes, Assistant Attorney General,
for appellee.
6. Lastly, Swanson contends that his trial counsel was ineffective because of counsel’s failure to object to the admission of the cell phone records since they were obtained by an illegal search and seizure and counsel’s failure to be prepared for the admission of the cell phone records. But, the failure to make a meritless objection, see Division 4, supra, cannot support a claim of ineffective assistance of counsel.
Fults v. State,
274 Ga. 82, 87 (7) (548 SE2d 315) (2001). What is more, in order to prevail on his claim of ineffective assistance of trial counsel, Swanson has to show that his attorney’s performance was deficient, and that but for the deficiency, there is a reasonable probability that the result of his trial would have been different.
Strickland v. Washington,
466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984);
Warbington v. State,
281 Ga. 464, 465 (2) (640 SE2d 11) (2007). Assuming for the purpose of Swanson’s argument that his attorney was deficient for not having knowledge of the contents of the cell phone, Swanson cannot show the required prejudice in light of the overwhelming evidence establishing his guilt.
Fuller v. State,
277 Ga. 505, 506 (3) (591 SE2d 782) (2004).
Judgments affirmed.
All the Justices concur.