CARLEY, Presiding Justice.
A jury found Lester Collier guilty of the malice murder of Ben Sullen, Jr. The trial court entered judgment of conviction on the guilty verdict and sentenced Collier to life imprisonment. A motion for new trial was denied, and Collier appeals.
1. Construed most strongly in support of the verdict, the evidence, including eyewitness testimony, shows that Collier threatened to defend himself by using a pipe against the victim. On the following day, Collier argued with the intoxicated victim in the street and struck him more than once with a metal pole or pipe as the victim started to walk away. Appellant fled, and a three or four-foot long, blood-stained pipe was found leaning against his mailbox. The victim died of blunt force trauma to the head and chest. The evidence was sufficient to authorize a rational trier of fact to find Collier guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Walker v. State, 281 Ga. 521(1), 640 S.E.2d 274 (2007).
2. Collier contends that the trial court erred by excluding evidence of the victim's propensity for violence when intoxicated and his reputation for carrying dangerous weapons.
It has long been established that the victim's general reputation for violence, including his carrying of dangerous weapons, is inadmissible in a murder trial unless the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly attempting to defend himself. Alexander v. State, 285 Ga. 166, 167(2), 675 S.E.2d 23 (2009); Cooper v. State, 249 Ga. 58, 61(2), 287 S.E.2d 212 (1982); Campbell v. State, 222 Ga. 570, 573(2), 151 S.E.2d 132 (1966). To meet this three-pronged test, Collier relies upon his own testimony showing that the intoxicated victim started an argument and tried to hit Collier with the pipe before he took it away, that the victim then swung at Collier with his fist, that Collier then struck the victim in the head with the pipe, and that, while the victim was staggering and reaching towards his pocket, Collier struck him on the head a second time with the pipe even though there was nothing to indicate to Collier that the victim had a weapon in his pocket.
Standing alone, this testimony fails to show that Collier was honestly seeking to defend himself either time that he struck the victim with the pipe. See Cooper v. State, supra. Under that testimony, Collier had already disarmed the victim before striking him the first time and, after that first blow by Collier with the metal pipe, the victim neither committed nor demonstrated the ability to commit any further assault against Collier. "Justification can not be based on a deadly assault which has been completely ended, unless the assailant has some further
Collier also complains that the three-pronged test should not be used to determine whether the victim's reputation for violence is admissible, because it is not used to determine whether the jury should be charged on justification. As already indicated, however, that three-pronged test is an essential and longstanding prerequisite to application of the reputation exception to the venerable rule that evidence of a victim's character is inadmissible. We reaffirm the three-pronged test in this context regardless of whether it has a role to play in determining the applicability of instructions on justification. Compare Buice v. State, 281 Ga.App. 595, 598(3), 636 S.E.2d 676 (2006) with Shackelford v. State, 270 Ga.App. 12, 16(2), 606 S.E.2d 22 (2004).
3. Collier urges that the trial court violated OCGA § 24-9-84.1 by admitting into evidence his 1996 convictions for two drug offenses and by failing to enter express findings in the record.
Although Collier himself testified and admitted the drug convictions on direct examination, the record does not contain any previous motion in limine, objection, hearing, or ruling regarding the admissibility of those prior convictions. These omissions certainly are not cured by trial counsel's testimony that, although she was not looking at the transcripts and was speaking strictly from memory, she had been under the impression that the prior convictions would come in. Thus, we are precluded from reviewing this issue on appeal. Dixon v. State, 231 Ga. 33, 36(9), 200 S.E.2d 138 (1973); Mullins v. State, 224 Ga.App. 218-219(2), 480 S.E.2d 264 (1997).
The trial court had no duty to conduct the applicable balancing test in OCGA § 24-9-84.1 absent an objection. Thomas v. State, 291 Ga.App. 795, 800(3), 662 S.E.2d 849 (2008). Even if Collier had previously moved for exclusion of the prior convictions and a hearing had been held, the absence of any ruling on the record would take this case out of the usual rule that the record is preserved and the defendant is not required to object to the evidence during trial. Watson v. State, 278 Ga. 763, 767(2)(b), 604 S.E.2d 804 (2004).
Collier asserts that trial counsel's failure to preserve this issue constitutes ineffective assistance of counsel. However, this claim is waived because it was not raised either in the motion for new trial as amended or at the hearing thereon by appellate counsel who had been appointed following Collier's conviction. Allen v. State, 286 Ga. 392, 399(5)(b), 687 S.E.2d 799 (2010). Moreover, this allegation of ineffective assistance is without merit, as trial counsel's testimony shows that she pursued the reasonable strategy, however mistaken it may appear with hindsight, "`of placing the damaging information before the jury through [Collier's] direct testimony, rather than risk having the information extracted from him on cross-examination.' [Cits.]" Wilson v. State, 291 Ga.App. 69, 74-75(4)(b), 661 S.E.2d 221 (2008).
4. The following jury charge is enumerated as error:
Collier contends that, by this charge, the trial court invaded the province of the jury, expressed an opinion, and gave contradictory and confusing instructions on impeachment
Moreover, we find no reversible error, much less any "plain error" pursuant to OCGA § 17-8-58(b), assuming that analysis under that provision is proper in this case. Contrary to Collier's argument that the charge essentially directed the jury that he is unworthy of belief since he was convicted of drug offenses, the charge states that a witness "may be" impeached, not that he "is" impeached, by proof of drug convictions. See Jones v. State, 246 Ga.App. 596, 598(3), 539 S.E.2d 602 (2000). Furthermore, the trial court at no time suggested that it found Collier's testimony less than credible. Nor did it otherwise impermissibly comment on the evidence by simply recognizing that the drug convictions were the only ones offered for impeachment purposes. Shy v. State, 220 Ga.App. 910, 912(3), 470 S.E.2d 484 (1996). Even if the language of which Collier complains was to have the appearance of usurping the province of the jury when considered in isolation, it must be read in conjunction with the immediately following language that "[i]t is for you to determine whether or not a witness has been impeached and to determine the credibility of such witness and the weight the witness's testimony shall receive in the consideration of the case." Because the charge thereby makes plain that the jury is the sole judge of witness credibility, it "provides no cause for reversal. . . ." Berry v. State, 267 Ga. 476, 480(4)(c), 480 S.E.2d 32 (1997).
Furthermore, because no reversible error occurred with respect to the jury instruction on impeachment, Collier cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Jennings v. State, 288 Ga. 120, 123(6)(a)-(b), 702 S.E.2d 151 (2010); Butts v. State, 273 Ga. 760, 771(30), 546 S.E.2d 472 (2001).
Judgment affirmed.
All the Justices concur, except NAHMIAS, J., who specially concurs.
NAHMIAS, Justice, specially concurring.
I concur in the result of the majority opinion and join all of it except the portion of Division 4 which holds, with respect to Collier's enumerated error regarding the jury charge on witness credibility, that
Maj. Op. at 106 (emphasis added) (quoting Madrigal v. State, 287 Ga. 121, 122-123(3), 694 S.E.2d 652 (2010), which in turn quotes Metz v. State, 284 Ga. 614, 620(5), 669 S.E.2d 121 (2008)). The majority then turns to the merits of the asserted error, finding "no reversible error, much less any `plain error' pursuant to OCGA § 17-8-58(b), assuming that analysis under that provision is proper in this case." Id. at 106 (emphasis added). That conclusion is correct.
The problem, in my view, is that under the plain language of OCGA § 17-8-58(b)— which the majority tellingly does not quote— failure to make a specific and timely objection to a jury charge at trial does not waive the right to "urge error on appeal"; it limits the appellant to arguing plain error. And we need not "assume" that plain error review is proper in this case; OCGA § 17-8-58(b) clearly says that it is. Metz initiated a line of cases that takes a truncated approach to appellate review of unobjected-to jury charges under OCGA § 17-8-58(b) and conflicts with another line of our cases that properly applies the 2007 statute. This issue is arising with increasing frequency as criminal cases tried after July 2007 reach the appellate courts, and I believe that the time has come to reconcile our case law by overruling Metz and its progeny.
OCGA 17-8-58 was added to the Criminal Code in May 2007 and applies to all trials that occur on or after July 1, 2007. The statute speaks in clear terms:
(Emphasis added.)
Subsection (a) of the new statute changed the previous rule that this Court had recognized, which allowed defense counsel in criminal cases to preserve objections to jury charges for full appellate review merely by announcing at the end of the charges that the defendant was "reserving" his objections, without specifying the ground for objection until after the jury returned its verdict. See White v. State, 243 Ga. 250, 250, 253 S.E.2d 694 (1979) (holding that "[w]here the trial court inquires whether there was objection [to the jury charges] and the defendant's counsel states that he reserves the right to object in his motion for new trial or appeal, there is no waiver" of appellate review); Pruitt v. State, 282 Ga. 30, 33 & n. 2, 644 S.E.2d 837 (2007). This rule allowed a defendant not to specify objections at a time when the trial court might correct an erroneous charge, leaving as the only remedy (where the error was reversible) the grant of a new trial. The new statute requires specific objections to jury charges to be made before the jury starts deliberating, giving the trial court the opportunity to correct any errors identified and salvage the trial.
Subsection (b) of OCGA § 17-8-58 begins by stating the cost of failure to make such a timely and specific objection: "preclud[ing] appellate review" of the jury charge—review that is normally de novo. Accurate jury charges are, however, important to the reliability of criminal trials. See Brodes v. State, 279 Ga. 435, 438, 614 S.E.2d 766 (2005) (discussing "the critical importance of accurate jury instructions as `the lamp to guide the jury's feet in journeying through the testimony in search of a legal verdict'" (citation omitted)). This may explain the remainder of subsection (b) of the 2007 statute, which states that, notwithstanding the failure to properly object at trial, a jury charge must still be reviewed for "plain error"—meaning a clear or obvious error that was not affirmatively waived; that affects the defendant's substantial rights, usually by affecting the outcome of the trial; and that also seriously affects the fairness, integrity, or public reputation of judicial proceedings.
There is no reason not to give effect to this statutory command. It is true that, unlike the federal system, see Fed.R.Crim.P. 52,
That said, the two areas where this Court applied plain error review before the enactment of OCGA § 17-8-58 were where statutes charged us with that duty. Thus, even absent proper objection, we will review alleged errors in the sentencing phase of a trial resulting in the death penalty, based on this Court's statutory mandate to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor," OCGA § 17-10-35(c)(1). See, e.g., Hicks v. State, 256 Ga. 715, 730, 352 S.E.2d 762 (1987) ("[E]ven if improper arguments have not been timely objected to at trial, reversal is required if `"there was a reasonable probability that the improper arguments changed the jury's exercise of discretion in choosing between life imprisonment or death."'" (citations omitted)).
Even more analogous to OCGA § 17-8-58 is the immediately preceding section of the criminal procedure code, OCGA § 17-8-57, which prohibits judges in criminal cases from "intimating [an] opinion as to what has or has not been proved or as to the guilt of the accused." That statute then provides that, "[s]hould 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." Id. (emphasis added). In accordance with that clear text, we have applied a sort of super-plain error review, holding not only that no objection at trial is required to assert a violation of OCGA § 17-8-57 on appeal, but also that if a violation is found, the conviction will be reversed
In light of this background law and the clear text of OCGA § 17-8-58, I agree with the majority that Collier's failure to object to the jury charge on witness credibility before the jury began its deliberations precludes appellate review of that enumerated error under the usual de novo standard. See Maj. Op. at 105-06. I also agree with the majority's alternative conclusion that, applying de novo review, there was no reversible error, see id. at 106, and it follows that there could be no plain error either (since plain error does not exist in the absence of reversible error). Thus, the majority reaches the right result in Division 4.
However, the majority's approach, which only "assum[es] that analysis under [OCGA § 17-8-58(b)'s plain error] provision is proper in this case," id. at 106, mistakenly suggests that plain error review is not required—a mistake that traces back to Metz and has led to other decisions by this Court and the Court of Appeals in which enumerated jury charge errors have simply, but incorrectly, been deemed waived for any type of appellate review. We should correct that mistake today, to ensure that criminal defendants receive the plain error review of jury charge issues to which they are now statutorily entitled.
Metz was this Court's first case applying § 17-8-58. In addressing the jury charge error presented on appeal, the Court first explained accurately that, "[u]nder subsection (a) of that Code section, a criminal defendant is required to `inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.'" 284 Ga. at 619-620, 669 S.E.2d 121 (quoting OCGA § 17-8-58(a)). The Court then stated, again accurately, that "[s]ubsection (b) precludes appellate review where there is a `(f)ailure to object in accordance with subsection (a).'" Id. (quoting OCGA § 17-8-58(b)). However, the Court then concluded that—in the passage quoted by the majority—"[a]s Metz did not specifically object to the charge on accomplice testimony at the conclusion of the jury charge, he has waived his right to urge error on appeal," without addressing the merits of that alleged error in any way. Id.
In reaching that conclusion, and despite quoting the first part of the statute, the Metz Court did not quote or address the remainder of subsection (b)—the portion that says ". . . unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section." The Court did not explain this omission, nor does the majority today, and I am unaware of any reason to disregard that portion of the Georgia Code.
In subsequent cases—which I joined without spotting this problem—jury charge issues were similarly deemed waived, citing Metz, without discussion of plain error or the merits of the issue. See Thompson v. State, 286 Ga. 889, 891, 692 S.E.2d 379 (2010); Hatcher v. State, 286 Ga. 491, 494, 690 S.E.2d 174 (2010). See also Madrigal, 287 Ga. at 122-123, 694 S.E.2d 652 (holding that the jury charge issue was waived, citing Metz, and also precluded from appellate review as invited error).
The case law, however, is not consistent. In at least five other cases—including our two most recent decisions involving OCGA § 17-8-58—this Court has correctly applied the statute, holding that normal appellate review was waived for the enumerated jury charge error (sometimes citing Metz for this point) but also addressing plain error. See Crawford v. State, 288 Ga. 425, 428(3)(a), 704 S.E.2d 772 (2011) ("Appellant's contentions that the trial court erred by failing to instruct the jury on Miranda and the defense of accident are waived for lack of a timely request or proper objection and there is no plain error."); Lacey v. State, 288 Ga. 341, 703 S.E.2d 617 (2010) ("Accordingly, under OCGA § 17-8-58(b), Lacey `waived his right to urge error (in the jury charge) on appeal,' [citing Metz], absent `plain error,' which does not appear here."); Higginbotham v. State, 287 Ga. 187, 189, 695 S.E.2d 210 (2010) ("Appellant's failure to object to the charge as given before the jury retired to deliberate constitutes waiver of the issue on appeal (OCGA § 17-8-58(a)) unless `such portion of the jury charge constitutes plain error which affects substantial rights of the parties.' OCGA § 17-8-58(b)."); Hicks v. State, 287 Ga. 260, 264, 695 S.E.2d 195 (2010) (using similar language); Mikell v. State, 286 Ga. 434, 437-438, 689 S.E.2d 286 (2010) ("Appellant failed to make a proper objection pursuant to OCGA § 17-8-58(a) regarding the trial court's failure to charge his supplemental requests to charge numbers 1 and 2 . . . [and] we conclude that the trial court's failure to give the requested supplemental charges cannot be considered such plain error under OCGA § 17-8-58(b) as to offset appellant's failure to object"), overruled on other grounds, Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010). The Court of Appeals also has cited Metz in several cases but gone on properly to discuss plain error.
The time has come to reconcile these two conflicting lines of precedent, as more and more criminal cases tried after the effective date of OCGA § 17-8-58(b) reach the appellate courts and present this issue. We may resolve the issue in State v. Kelly, Case No. S11A0374, because the questions we posed in granting the application to appeal in that case focus specifically on the OCGA § 17-8-58(b) plain error issue. But Kelly is an April Term case that may not be decided until this fall. In the meantime, the majority opinion strains to avoid resolving the issue—and I emphasize that the majority opinion should not be read as expressing the Court's ultimate position. Two other opinions released today take the same avoid-the-question approach. See Howard v. State, 288 Ga. 741, ___, 707 S.E.2d 80 (2011); Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56 (2011). Having now identified these conflicting precedents,
I see no reason to wait, because it is clear that we must follow the cases that give effect to the unambiguous text of OCGA § 17-8-58(b), rather than the decisions that ignore that directive. To the extent that Metz and other cases hold or suggest that the failure to object properly under OCGA § 17-8-58(a) waives all appellate review, even review limited to plain error under OCGA § 17-8-58(b), those cases should be overruled without further delay.
For these reasons, I cannot join all of Division 4 of the majority opinion.
Puckett v. United States, ___ U.S. ___, ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (citations omitted).