BLACKWELL, Judge.
Arthur Robinson was tried by a Muscogee County jury and convicted of burglary.
Viewed in the light most favorable to the judgment below,
1. Both Robinson and Johnson were charged with burglary for entering the building that housed the laundry and dry-cleaning business, and Johnson pled guilty to the burglary charge before trial. She did not testify against Robinson at trial, but the prosecuting attorney nevertheless elicited testimony about her guilty plea from the officer who had found Robinson and Johnson in the building:
Robinson's lawyer objected and moved for a mistrial. The trial court correctly sustained the objection because Johnson did not testify and, as the State now concedes, evidence of her guilty plea was inadmissible. See Pinckney v. State, 236 Ga.App. 74, 74(1), 510 S.E.2d 923
In light of this remedial instruction, we think the trial court did not abuse its considerable discretion when it denied the motion for mistrial.
The utterance of such inadmissible testimony does not always require a mistrial, so long as the trial court gives an adequate, corrective instruction that the jury cannot consider it as evidence of the guilt of the accused. See Pinckney, 236 Ga.App. at 75(1), 510 S.E.2d 923; see also Hendrix v. State, 202 Ga.App. 54, 56(4), 413 S.E.2d 232 (1991), overruled on other grounds, Duke v. State, 205 Ga.App. 689, 690, 423 S.E.2d 427 (1992). As we have explained before, "[t]he trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise [of this discretion] may not be reversed unless abused." Whiteley v. State, 188 Ga.App. 129, 130(1), 372 S.E.2d 296 (1988); see also Clay v. State, 216 Ga.App. 310, 312(2), 454 S.E.2d 198 (1995). Likewise, "[w]hether to grant a motion for mistrial is within the trial court's sound discretion, and the trial court's exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant's right to a fair trial." Watson v. State, 289 Ga. 39, 42(7), 709 S.E.2d 2 (2011) (citation and punctuation omitted). The remedial charge in this case, which repeatedly admonished the jury that Johnson's guilty plea was not to be considered in any way with respect to the guilt of the accused, was sufficient to remedy the error and render a mistrial unnecessary. See Hendrix, 202 Ga.App. at 55-56, 413 S.E.2d 232 (curative instruction sufficient to remedy error). Accordingly, the trial court did not err when it denied the motion for mistrial.
2. We turn next to the contention that Robinson was denied the effective assistance of counsel at trial. To prevail on his claim of ineffective assistance, Robinson must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(111), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Robinson must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Robinson must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574.
Robinson contends that his lawyer was ineffective because, when the prosecuting
Even assuming that Robinson has shown that the failure of his lawyer to object to the admission of the other three prior convictions was unreasonable, we do not think Robinson has carried his burden of proving a reasonable probability that the failure to object affected the outcome of his trial, mostly because two of the prior convictions, even if inadmissible under OCGA § 24-9-84.1, would have been admitted anyway, under OCGA § 24-9-82, to disprove facts to which Robinson testified. As part of an effort to portray himself as a naive innocent, to whom it never occurred that entering the building of another without permission and, while inside the building, dismantling pipe could lead to him being charged with a crime, Robinson claimed in his testimony that "I never had no charge like this before.. . . I've never been charged like this before." "A witness may be impeached by disproving the facts testified to by him," OCGA § 24-9-82, and where a criminal defendant testifies and volunteers a denial of prior criminal conduct of a certain nature, evidence that he previously committed crimes of that nature may be admissible to disprove his denial, even though the evidence incidentally reflects upon his character. See Williams v. State, 257 Ga. 761, 763(4)(c), 363 S.E.2d 535 (1988). Two of the prior convictions that were admitted against Robinson without any objection from his lawyer—one for criminal trespass and the possession of tools for the commission of a crime,
Given that three prior convictions properly could have been admitted in any event, we do not think Robinson has shown a reasonable probability that the admission of the fourth—a 1994 conviction for possession of cocaine and attempted sale of cocaine— affected the outcome of this case. The trial court described the evidence in this case as "overwhelming." Robinson was found inside the building of another, without permission, hammering on metal pipe with a large wrench. According to a police officer, Robinson admitted that he was "getting some iron and copper," and according to the officer, he pointed to pieces of pipe he had already broken off. In addition, the officer testified that Robinson admitted that he had entered the same business on three other occasions for the same purpose, and this evidence was corroborated by the president of a scrap metal recycling business, who testified that Robinson had tried to sell him scrap metal in the months preceding the burglary. In his testimony, Robinson did not deny entering the building or breaking off the pipe, but he claimed that he only wanted to use it to bar the door, notwithstanding that he apparently had broken off three pieces of pipe and was in the process of breaking off a fourth when he was discovered, leaving the jury to wonder why Robinson needed so many pieces of pipe to bar the door. Robinson also claimed that the officer had fabricated the statements that had been attributed to Robinson and that the president of the scrap metal recycling business had fabricated his testimony about his dealings with Robinson. With evidence of three prior convictions properly admitted—two for crimes similar to the crime with which Robinson was charged—we doubt that the failure of his lawyer to object to the fourth prior conviction had any effect at all on the outcome of the trial. Robinson has failed to show us a reasonable probability that it did, and having so failed, he has not carried his burden to show prejudice under Strickland. See Everett v. State, 297 Ga.App. 351, 354, 677 S.E.2d 394 (2009). We, therefore, affirm the judgment of conviction entered below.
Judgment affirmed.
BARNES, P.J., and ADAMS, J., concur.