HINES, Justice.
David Robert Norton appeals his convictions and sentences for malice murder, arson, criminal attempt to commit the crime of concealing the death of another, possession of a firearm by a first offender probationer, and
Construed to support the verdicts, the evidence showed that Norton was Amy's live-in boyfriend. David Ayers ("David") was Amy's ex-husband; they had two children together. In September or October 2007, Amy went to David's house to discuss the children and spent the night there. On October 7, 2007, Norton sent David an email discussing the incident, and stating, "[t]ake this seriously and to heart.... that i do not want ANYONE sniffin around my girl." [Sic.] On October 26, 2007, Amy told David that she was going to ask Norton to leave. On the morning of October 30, 2007, Amy's son, Wesley Ayers, left the house for school; Amy and Norton were still there. When Wesley returned, there was smoke in the house and he called 911. After extinguishing a fire in an upstairs bedroom, a firefighter found Amy's burned body on the floor; a roll of duct tape was nearby, a sheet was under the body, and the smoke detectors on the first and second floors of the house had been removed from the walls. Amy had been killed by a shotgun blast to the back of her skull; the shot was directed slightly upward from a distance of one foot or less. Two separate fires had been started in the bedroom: one originated on Amy's body and the other in a chair. Debris tested positive for gasoline. A detective spoke to Norton by cell phone shortly after examining the scene; Norton refused to reveal his location and said that he knew Amy was dead.
Norton was found, taken to a law enforcement facility, given his Miranda
1. The evidence authorized the jury to find Norton guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Norton contends that evidence of his interview with law enforcement investigators, and the written statement he made at the time, should have been suppressed, asserting that he was then under the influence of drugs and alcohol such that his waiver of his Miranda rights was not made knowingly
Jones v. State, 285 Ga. 328, 329(2), 676 S.E.2d 225 (2009).
During the hearing, Norton's expert witness, a psychiatrist, testified that Norton reported that, before the interview, he had taken 15-20 pills of Xanax, 2 pills of Adderall, and had been drinking bourbon and beer. The expert further testified that he had viewed the recording of the interview, had conducted his own interview of Norton, and concluded that Norton had a history of substance abuse that had created in him a tolerance for the substances such that he would appear to be functioning normally, but would not in fact be able to make intelligent decisions, and that, in the expert's opinion, at the time of the interview, Norton was not able to knowingly or intelligently waive his Miranda rights. Another expert witness, also a psychiatrist, testified on behalf of the State that she reviewed the interview and, given the statements Norton made and the answers to questions he was asked, he understood that giving a statement to investigators could have legal consequences, did not display a "significant level of impairment," and knowingly, intelligently, and voluntarily waived his Miranda rights. The detective who was the primary interviewer testified that he did not promise Norton anything in exchange for speaking with the detective, that Norton appeared to understand both what was occurring and his Miranda rights, even discussing the fact that he could not afford an attorney, and that he wished to speak with the detective nonetheless. After its own review of the recorded interview, the trial court denied the motion to suppress.
The mere fact that Norton may have been somewhat intoxicated at the time of the interview does not automatically render evidence thereof inadmissible. Jones, supra. See also Shelby v. State, 265 Ga. 118, 119, 453 S.E.2d 21 (1995); Fowler v. State, 246 Ga. 256, 258(3), 271 S.E.2d 168 (1980). The trial court was faced with conflicting evidence, and determined that Norton made his statement knowingly and voluntarily; there was evidence to support this determination; and there is no reversible error in the court's denial of the motion to suppress. See Miller v. State, 288 Ga. 286, 286-287(1), 702 S.E.2d 888 (2010).
3. Norton contends that the trial court wrongly admitted into evidence two autopsy photographs that showed the victim's head, one with a portion of the scalp excised and one with a portion of the skull removed.
Bunnell v. State, 292 Ga. 253, 258(5), 735 S.E.2d 281 (2013). The photographs aided the medical examiner in testifying as to the range and direction of travel of the shotgun pellets, which, coming from the rear of the right side of Amy's head, served to rebut the defense of accident, and it was not error for the court to admit them into evidence. Id.
4. During closing argument, the State presented a demonstration with a piece of wood 18 inches long, which represented
During deliberations, the jury asked to view the video recording of Norton's statement to investigators, and to have the transcript thereof to refer to during the viewing. After discussion with counsel, the court arranged for the jury to have the recording made available to it to view in the jury room, and for copies of the transcript to be delivered there as well. Although Norton asserts that it was error to do so, the record is clear that he acquiesced in the court's decision, and therefore cannot complain on appeal. See Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997).
6. Norton also contends that, after deciding that the video should be viewed by the jury, with the transcript used for reference, the trial court should have given further instructions regarding the jury's consideration of the video and transcript.
Durham v. State, 292 Ga. 239, 240-241(3), 734 S.E.2d 377 (2012). Under this standard, assuming without deciding that Norton did not affirmatively waive error, see Cheddersingh v. State, 290 Ga. 680, 683-684(2), 724 S.E.2d 366 (2012), Norton cannot show that the court's instruction affected his substantial rights "which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings." Kelly, supra at 32(2)(a), 718 S.E.2d 232. The court's instructions in response to the jury's request adequately advised it of the procedure to be followed and, had the court repeated all of its earlier instructions regarding the recording, it would not have altered the outcome of the trial.
7. Norton contends that his trial counsel failed to provide effective representation, and that his motion for new trial founded upon that ground should have been granted. In order to prevail on this claim, he must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional
a) Norton claims that counsel's representation was ineffective because counsel had an actual conflict in his representation of Norton in light of the fact that counsel had represented Amy in a civil matter some years before she was killed.
White v. State, 287 Ga. 713, 722(4)(a), 699 S.E.2d 291 (2010) (Footnote omitted.) Beyond the fact of prior representation of the victim, and that Amy had worked in the same office complex as counsel, Norton does not advance any basis for finding an actual conflict of interest. There was clearly no simultaneous representation of Amy and Norton. See Hill v. State, 269 Ga. 23, 24(2), 494 S.E.2d 661 (1998). Nor was there any connection between the representation of Norton and the prior representation of Amy. Id. at 25, 494 S.E.2d 661. As Norton fails to show an actual conflict, much less an effect on counsel's performance, it was not error for the trial court to deny his motion for new trial on this ground. Moon, supra.
b) Norton also claims that counsel failed to properly investigate the case. Pretermitting whether counsel's investigation of the case could be characterized as inadequate, Norton has "failed to show that a more thorough investigation would have yielded any significant exculpatory evidence and thus failed to establish prejudice resulting from the allegedly deficient investigation. [Cit.]" Shank v. State, 290 Ga. 844, 848(5)(a), 725 S.E.2d 246 (2012).
c) Although Norton urges that counsel was ineffective for not requesting the court to enter a more complete written order on his motion to suppress, or to request a certificate of immediate review of the court's interlocutory order, see OCGA § 5-6-34(a), as discussed above, the motion was properly denied and the court's order does not warrant reversal or remand. Division 2, supra.
Judgments affirmed.
All the Justices concur.