MELTON, Justice.
Following a jury trial, Anthony Threatt Robinson appeals his convictions for felony murder predicated on criminal attempt to commit armed robbery, fleeing and attempting to elude a police officer, obstruction of a police officer, and making false statements. Robinson contends that the evidence was insufficient to support the verdicts, that the trial court made numerous errors regarding evidence and jury instructions, and that trial counsel rendered ineffective assistance.
1. Viewed in the light most favorable to the verdict, the record shows that Robinson and Benjamin Carter had been close friends for many years. On September 25, 2012, an individual, later identified as Carter from surveillance footage, entered the Coastal Gold Exchange (CGE), a business that bought precious metals. Carter pulled a gun on a CGE employee, Jimmie Skelton, and stole approximately $2,000. No one was ever arrested for this robbery, but there was evidence that Robinson and Carter used their cell phones in the vicinity of CGE around the time that the robbery occurred. In addition, on September 27, 2012, Dionne Polite-Brown, an acquaintance of Robinson and Carter, heard Robinson tell Carter and others that he and Carter had a "good lick" or a "sweet lick," apparently a reference to the September 25th robbery.
On the morning of September 27, 2012, Robinson told Antwan Williams, the mother of one of his children, that he was going to procure money for their son. Later that day, Carter and Robinson picked up Jessica Hamilton, the mother of Carter's child, in a black truck. Hamilton heard Robinson tell Carter he needed to get money for his son's mother. After dropping Hamilton off, Carter went to the home of Nicole Owens, who testified that Carter was flustered and wearing a pistol on his side.
On the afternoon of September 27, 2012, Carter entered CGE while Timothy Johnson, the owner of the business, was working alone. Following the robbery that had occurred two days earlier, Johnson reviewed security footage from the store and studied the features and image of the robber. As a result, Johnson became suspicious when Carter walked into the store. Johnson warned Carter that he knew who he was, and Johnson placed his hand on a gun that he was carrying.
Carter then fled the business, and Johnson pursued. Carter ran behind the shopping center where CGE was located. Johnson testified that, as Carter was fleeing, Carter kept turning and looking back at him. At that time, Johnson noticed that Carter had a gun on his side. Johnson testified that he felt his life was in danger. Based on this belief, Johnson drew his gun and shot Carter in the back. Wounded but still mobile, Carter jumped into the black truck that Robinson had parked in an alley near CGE. Robinson drove the truck away, and Johnson reported the events to a 911 operator. In the area where Carter had fled, Johnson found a loaded gun lying in the grass. Polite-Brown testified that she had previously seen Robinson with the same gun.
This evidence was sufficient to enable the jury to find Robinson guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Nonetheless, Robinson contends that there was insufficient evidence to prove that (a) he was a party to the crime of attempted robbery and (b) his actions were a proximate cause of Carter's death. We cannot agree.
Pursuant to OCGA § 16-2-20(a), "[e]very person concerned in the commission of a crime is a party thereto and may be . . . convicted of commission of the crime." Robinson argues that the State presented only circumstantial evidence that did not exclude every other reasonable hypothesis except that of his guilt as a party to the crime, as required by OCGA § 24-14-6.
The record in this case shows that Robinson: (1) stated a desire and intention to procure money for one of his children; (2) drove Carter to the vicinity of CGE; (3) parked in a nearby alley prior to the robbery and waited for Carter to return; (4) drove Carter away from the scene, thereby fulfilling the role of a getaway driver; (5) fled erratically from police, running stop signs and crashing the truck into a home; (6) failed to tell police that Carter had been shot and remained in the truck; and (7) misled police about his close relationship with Carter. Furthermore, the evidence revealed that Robinson had previously been seen with the gun that Carter dropped on the ground after the September 27th attempted armed robbery. Based on these facts, the jury was presented with sufficient evidence to find Robinson guilty as a party to the crime of attempted robbery. See, e.g., Wise v. State, 325 Ga.App. 377(1), 752 S.E.2d 628 (2013).
Robinson also maintains that his felony murder conviction must be reversed because the evidence was insufficient to show that his acts were a proximate cause of Carter's death.
(Footnote and emphasis omitted.) Currier v. State, 294 Ga. 392, 394(1), 754 S.E.2d 17
Proximate cause exists if Robinson's crime of attempted armed robbery "directly and materially contributed to the happening of a subsequent accruing immediate cause of the death, or if . . . the homicide [was] committed within the res gestae of the felony . . . and is one of the incidental, probable consequences of the execution of the design to commit the [predicate felony]." (Citations and punctuation omitted) State v. Jackson, [supra,] 287 Ga. at 652(2) [697 S.E.2d 757]. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life." Hulme v. State, 273 Ga. 676, 678(1), 544 S.E.2d 138 (2001). That is, the felony must be dangerous per se or by its circumstances create a foreseeable risk of death. Id.
Davis v. State, 290 Ga. 757, 760(4), 725 S.E.2d 280 (2012).
Here, it was reasonable to foresee that Carter, who was attempting an armed robbery, could be fatally wounded in attempting such a highly dangerous enterprise. As Robinson was a party to the crime of attempted armed robbery, his acts, therefore, were properly found to be a proximate cause of Carter's death, which flowed directly from the dangerous criminal enterprise. Id.
2. Robinson contends that the trial court erred by giving its own instruction on proximate cause to the jury rather than the exact text of the one that he requested, contending that his own instruction would have been "easier for the jury to understand." As Robinson concedes, however, the trial court's instruction was based directly on the language of State v. Jackson, supra. As the trial court's instruction was legally correct, there is no error. Id.
3. Robinson contends that the trial court erred by denying a motion for a mistrial he made during Johnson's testimony about the September 27th robbery. We disagree.
The record shows that, at the start of the earlier robbery on September 25th, the robber approached Skelton, the clerk on duty, and, according to Skelton, the robber asked what kind of gold CGE sold. It further appears that, during the attempted robbery on September 27th, Carter approached Johnson and asked the same thing. At the time of Robinson's second trial, however, Skelton was not available to testify, and the trial court ruled that the statement made to Skelton was inadmissible hearsay.
On appeal, Robinson now contends that Johnson's testimony introduced bad character evidence into trial. As an initial matter, this was not the basis for the motion during trial. As such, this new ground, articulated for the first time after trial, has been waived. See, e.g., Crawford v. State, 267 Ga. 543(6), 480 S.E.2d 573 (1997). Even if preserved, however, Robinson's argument fails. "Whether to grant a mistrial based on improper character evidence is within the discretion of the trial court. [Cit.] We have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant's prior convictions or criminal acts. [Cit.]" Bunnell v. State, 292 Ga. 253, 257(4), 735 S.E.2d 281 (2013). Robinson, himself, declined such a curative instruction. Moreover, as discussed above, the inadmissible testimony about which Robinson complains only alludes to a hearsay statement about an accomplice that was never admitted into evidence. There was no error.
4. Robinson argues that the trial court erred by denying his motion for a mistrial based on his contention that the State introduced improper evidence to link him to the robbery conducted on September 25th through the testimony of Polite-Brown. Again, we disagree.
The transcript shows that, during her testimony, Polite-Brown stated that she heard Robinson tell Carter that something "had been a good lick." Robinson now contends that this was inappropriate character evidence linking him to the earlier robbery on September 25th and that the State failed to provide him with proper notice of this evidence pursuant to OCGA § 24-4-404(b). The record shows, and the trial court's ruling reflects, however, that Robinson did not raise this argument as the actual basis for his mistrial motion. Instead, Robinson contended both in court and in a written supplement that the State elicited the testimony from Polite-Brown as part of a scheme to link him to a wholly unrelated robbery in Florida. Based on extensive argument and evidence from Robinson's earlier mistrial, as well as the evidence presented at the second trial, the trial court determined that the testimony in question did not refer to the unrelated robbery in Florida. Accordingly, the trial court further determined that, contrary to Robinson's argument, the State was not attempting to introduce this unrelated robbery into evidence.
Robinson, therefore, has waived his right to argue this ground on appeal, and, in any event, the trial court did not abuse its discretion in denying the motion for a mistrial. See, e.g., Sanchez v. State, 285 Ga. 749, 751(3), 684 S.E.2d 251 (2009) ("In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.") (Citation and punctuation omitted.).
5. Robinson maintains that the trial court erred by charging the jury regarding self-defense, as that doctrine related to Johnson's shooting of Carter. We disagree.
Robinson did not object at trial to this instruction; therefore, this Court may only review the giving of this instruction for "plain error which affects [Robinson's] substantial rights." (Citations omitted.) Woodward v. State, 296 Ga. 803, 806(2), 771 S.E.2d 362 (2015); see also State v. Kelly, 290 Ga. 29, 33, 718 S.E.2d 232 (2011). The record shows that Robinson, himself, originally requested a charge on self-defense, but subsequently withdrew the request. After considering the nature of the facts, however, the trial court gave a charge modeled after the Suggested Pattern Jury Instructions for Criminal Cases, § 3.10.12, but tailored to address Johnson's shooting of Carter.
7. Robinson contends that his trial counsel rendered ineffective assistance by failing to object to (1) the testimony of two different witnesses regarding the identification of Carter as the person depicted in still photographs taken from the surveillance footage of the September 25th robbery and (2) the State's contention in its opening statement that witnesses would identify the individual in the surveillance footage of the September 25th robbery as Carter.
Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012).
The record shows that Owens and Hamilton, who both knew Carter well, identified Carter in the surveillance footage of the September 25th robbery. Trial counsel made the reasonable strategic decision not to object to the testimony in order to avoid focus on whether Carter was involved in the September 25th robbery of CGE, because there was no direct evidence that Robinson was actually involved in that robbery. Likewise, trial counsel made a strategic decision not to object during the opening statement because: (1) he generally does not object to opening statements which are not evidence, and the jury is generally instructed on this point; and (2) part of his general trial strategy was to allow the State to "lock in" on certain evidence as much as possible during opening statements that he did not believe the State could prove so that he could argue the State failed to prove this evidence later. "Whether to object to the content of an opening statement is a tactical decision," and trial counsel's "reasonable tactical decision" not to object during opening statements does not generally qualify as deficient performance. Phillips v. State, 285 Ga. 213, 219(5)(a), 675 S.E.2d 1 (2009). It did not qualify as deficient performance in this case. Trial counsel's strategy with respect to all of the aforementioned matters was not unreasonable.
Judgment affirmed.
All the Justices concur.
Although the pattern charge includes the option of a parenthetical phrase after "would excite" that states "(not merely the fears of the defendant but)", the trial court chose not to include this language.